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014 647 895 5 
 
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CONCLUDING ARGUMENT BY M. L. RICE, ESQ., BEFORE SELECT 
 COMMITTEE ON ARKANSAS AFFAIRS. 
 
 Mr. Chairman and gentlemen of the committee : It becomes nec- 
 essary for me to present some points in the case that have not already been 
 presented, from the fact that I appear peculiarly as the attorney of Mr. 
 Brooks. I am not like the gentlemen on the other side who occupy so dis- 
 interested a position that they do not know whom they represent, except 
 that they claim to be speaking for the public good, while they are advocat- 
 ing the overthrow of constitutional government and the establishment of 
 the uncertain results of revolution in its stead. I am not only the attor- 
 ney of Mr. Brooks, but I am his friend and one of his earnest partisans, 
 as I have been all through this matter, from the commencement of the 
 campaign to the present time ; and I shall speak from that stand- 
 point. I shall confine myself in the argument in the case to the testi- 
 mony in this record, and if I allude to a matter outside that is of such 
 public uotoriety that the committee can take judicial notice of it, I shall 
 call the attention of the committee to that fact, so that it may not be 
 mixed with my statement of the testimony. 
 
 Much has been said about the affairs of the South, and much cheap 
 prejudice has been sought to be raised against this investigation by re- 
 peating and re-repeating that the South has been afflicted with bad gov- 
 ernments, and the nation was getting tired of the manner in which 
 southern matters have been conducted. We often hear the remark that 
 the people of the Southern States ought to be permitted to manage their 
 own affairs. In these remarks the word " people " means the rebel ele- 
 ment, to the exclusion of every republican in those States. 
 
 ISTow I shall not discuss this question. I admit that the reconstruc- 
 tion governments in the South have not been what their friends expected 
 them to be, or what they ought to have been ; but there are forty-five 
 thousand republicans in Arkansas (as well as a large number of demo- 
 crats, who supported Mr. Brooks, and still, in their hearts, adhere to his 
 claims) who have never participated in politics other than to vote ; who 
 never had anything to do with the government of that State, and who 
 have never been in the least at fault in the mismanagement of its affairs; 
 and it certainly looks a little unreasonable for Congress to say to them 
 that, because they have suffered the inconvenience of a bad administra- 
 tion of their government under reconstruction, that therefore it will allow 
 them to be deprived of all lawful government, and hand them over for 
 their legal and political rights to the rule of an illegal, unauthorized, 
 self-constituted class of individuals, erroneously styled a State govern- 
 ment. 
 
 In the first place, I insist that if that were a good defense as to those 
 who had mismanaged their trusts ; if that were a reason as to them, 
 why the Government should withhold its powerful arm in the mainte- 
 nance of lawful government in that State, it could not be urged against 
 the client whom I have the honor to represeut, because not one single 
 error of that State administration can be laid to his charge, or one sin- 
 1 ARK 
 
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 2 '^f 
 
 gle fault in it traced to any act of his ; and although he is an earnest 
 and zealous republican, and has always adhered to that faith, yet the 
 platform on which he ran, and the able and thorough canvass which he 
 made in favor of reform in the administration of State affairs, so im- 
 pressed the masses of the people of the State with the soundness of his 
 theories, and with the hope of better government under his administra- 
 tion, that three-fourths of the democratic party laid aside their feelings 
 of dislike on account of his republicanism, and almost hatred on account 
 of his long-cherished anti-slavery sentiments, and in the hope of securing 
 a good administration of State affairs which the character of his cam- 
 paign seemed to promise, supported him with an enthusiasm seldom 
 witnessed in a State election. 
 
 They adhered to Mr. Brooks, not only as against Elisha Baxter, but 
 they adhered to him as against one of their own men, as popular a man 
 as there was in the State, by the name of Andrew Hunter, who was put 
 in nomination for a short time; but the democratic masses refused 
 to take their support from Brooks and give it to Hunter, because they 
 were satisfied with Brooks's views of State policy, and hoped through it 
 to secure the general reform in State affairs which they desired. This 
 applies to the masses of the democratic party. There was about one- 
 fourth of the party, including in the number the supposed leaders and 
 politicians of the party ; the same men that inaugurated the Garland 
 movement, and are now its principal supporters ; the same men who 
 brought out Hunter for the purpose of defeating Brooks, and intrigued 
 with the Baxter leaders, and finally supported Baxter, after Hunter's 
 name was taken down ; the same men who carried the State of Arkansas 
 into rebellion in 1861. They never were for Brooks; they did not like 
 the plain, straightforward manner in which he proposed to administer 
 the State government. They wanted all the intrigue, all the maneu- 
 vering and the short-comings, errors, and corruptions about which they 
 had complained so much, but they did not want other parties to have 
 the fruits of them ; they wanted them all retained, with simply a trans- 
 fer of the government to them, without any reform in the manner of its 
 administration. 
 
 I take this occasion to say that, notwithstanding all the misrepresen- 
 tation that has attended this case, there is not an intelligent, honest 
 man in the State of Arkansas who ever doubted Mr. Brooks's capacity, 
 who ever doubted his integrity, or the soundness of his principles on 
 State administration. 
 
 I will say further, that although he has been robbed of the fruits of 
 his victory, and been unlawfully and fraudulently deprived of the high- 
 est right which a citizen could claim from the voice of the people, ex- 
 pressed at a State election, yet I boldly assert that he was never guilty 
 of a dishonest or dishonorable act in securing that election, and has 
 never since taken an unlawful or dishonorable step to secure the fran- 
 chise of which he has been robbed ; he has, however, pursued the right 
 with which the people had clothed him, in order to perform a duty which 
 he believed devolved upon him by reason of his election by the people 
 of that State. 
 
 THE ISSUE PRESENTED BY THE RESOLUTIONS. 
 
 Under the resolution which we are considering, the first proposition, 
 as I understand it, is to ascertain who was elected governor of Arkansas 
 at the election in 1872. The next proposition is for the committee to as- 
 certain and report whether there was a republican form of government 
 
„ in the State of Arkansas; and the third proposition is to report who should 
 be recognized as governor. That seems to be the issue which we are 
 here to-day, and have been for several days, discussing, and which the 
 committee has to decide in its report. I understand that it is stated that 
 the committee cannot go into any matter which has arisen since its ap- 
 ,- poiutment. Now, that is a system of special pleading inconsistent with 
 the magnitude of this case. As to the question of who is elected gov- 
 ernor, it is true that that was anterior to the appointment of this com- 
 mittee; but, based upon that, comes the question whether there was a 
 republican form of government there at that time; whether there was 
 afterward, and whether there is now; and incidental to and dependent 
 upon both of these, is the question as to who should be recognized as 
 governor of the State. If any event has transpired since that time 
 which makes it necessary to inquire iuto the claims of some other per- 
 son, that inquiry is certainly within the purview of the resolution under 
 which this committee is acting. But the House, at its last session, ex- 
 tended the time of this committee, and, of course, it extended the inquiry 
 over the period of time to which that exteusion applied. Therefore I 
 take it that we are investigating this whole case. I know that the other 
 side (and I concede to them the right, because I never was oppressive to 
 the poor) has a right to stand upon any quibble, however contemptible 
 in law it may be. 
 
 MR. BROOKS WAS ELECTED GOVERNOR. 
 
 As to the question of whether Mr. Brooks was elected governor of the 
 State, it has been said, since we have been before this committee, that 
 that might be a disputed question. If it is disputed here, it is the first 
 time that it has ever been disputed since the close of the polls at the 
 election in 1872. No human being whom I ever heard of ever claimed 
 that Mr. Brooks was not elected. The litigation in this whole case, 
 from the beginning to the end, has been on the assumption that 
 Mr. Brooks was elected, and Mr. Baxter's pretense of being gov- 
 ernor was only on the ground that he had been couuted in. He 
 was thwarting Mr. Brooks in presenting and establishing his right 
 to the office. Mr. Baxter has beeu a witness in this case, but he never 
 claimed in his testimony that he had been elected governor. In every 
 petition, in every statement, in every correspondence which this record 
 develops there is not an assertiou or an insinuation that, in poiut of 
 fact, Baxter was elected governor of the State of Arkansas. The gen- 
 tlemen on bath sides must excuse me for omitting the word governor 
 before the names of Mr. Brooks or Mr. Baxter. I am too feeble to use 
 complimentary titles, especially toward one man who has been robbed 
 of the title for two years, and to another man to whom the title should 
 never have been applied. I therefore shall call them Brooks and Bax- 
 ter, without meaning any disrespect to either. 
 
 I listened to Mr. Baxter himself here the other day, although I was 
 then in considerable pain, on purpose to see whether there was really 
 enough, even in the death-throes of a played-out politician, to make one 
 assertion consistent with his pretensions, and I found that he never 
 claimed that he had been elected governor; he never intimated it ; he 
 simply claimed that he held the office by that sort of royal prerogative 
 which arises from his having been couuted in ; and that there was no 
 tribunal on earth or known to men by which the matter could be in- 
 vestigated. He said that if the question could have been brought up 
 in a legal manner, and Mr. Brooks could prove before a tribunal that 
 
had jurisdiction that he was elected, he (Baxter) would make reparation 
 to him ; but, if Baxter is carefully traced through all his dubious ways, 
 it will be seen that, in his opinion, (excepting his counted-in and purchased 
 legislature,) there is not a tribunal on earth which has that jurisdiction (?), 
 and the question can only be settled at the great day when the secrets of all 
 men are made known ; but I apprehend that, after Elisha Baxter has 
 atoned for the errors and wrongs of having robbed Mr. Brooks of this 
 office, aud for the despotic, lawless, and fraudulent course which he has 
 pursued to deprive him of it, he will have but little left with which to make 
 a personal atonement to Mr. Brooks. The testimony in this case shows 
 that a geueral conspiracy was entered into previous to the election of 1872, 
 for the purpose of installing Baxter and those who ran on the ticket 
 with him, regardless of the number of votes received ; that iu pursuance 
 of that, one of the first steps taken was disfranchisement after registra- 
 tion 5 the striking off the registration-books, after the registration was 
 closed, the names of thousands of legal voters of the State of Arkan- 
 sas, which striking off was purely arbitrary, and for no other reason 
 than that the voters whose names were thus struck off would vote for 
 Mr. Brooks. The whole election-machinery was in the hands of 
 Baxter. After that was done, still a large majority would be for 
 Brooks, as was apparent from public sentiment. The entire country 
 was for him. The town and the little circles of seven-by-nine poli- 
 ticians were for Baxter ; but the great mass of the people, whether 
 rebel or Federal, whether Union or secession, whether democratic 
 or republican, who wanted a peaceable, honest, and strong govern- 
 ment, were for Brooks. Therefore it was necessary to do something 
 else that would defeat Brooks. They next resorted to the stuffing 
 of the ballot-boxes at the election, (I distinguish between that and the 
 stuffing after the polls were closed.) This testimony shows that in 
 some instances they had voting-places where the tickets were handed 
 in at a window which was so high from the ground that unless a mau 
 was as tall as I am, he would have to send up his ticket in the notch of 
 a stick. When the ticket was taken from the stick, it it were a Brooks 
 ticket, (and the tickets were so marked that they could be distinguished 
 from each other, and if they were not so marked, they would open and 
 read them,) they would throw the Brooks ticket into the stove, and take 
 a ballot from a pile of Baxter tickets which they had on the table, and 
 put it in the ballot-box, so as to have the number of ballots and the 
 poll-books correspond. The testimony is further (and I only speak of a 
 few instances which are shown in the record) that in another case the 
 ballot-box was arranged, and a certain number of ballots — say fifty — 
 were put in the box, all for Baxter, before the polls opened, and then 
 when the polls closed, a corresponding number of fictitious names was 
 added to the poll- book, so that they would tally ; and there were those 
 fifty fraudulent votes to be counted for Baxter. Another very striking 
 instance occurred in which they pretended to be very magnanimous, and 
 agreed that the Brooks men might all vote first. They were going to be 
 very polite to them, and they voted until the count reached to 350. Just 
 as they got to that number the judges looked at their watches and as- 
 certained that it was dinner-time. These officers that were taking the 
 vote were very exclusive, nobody else was allowed in, and in some in- 
 stances even the United States supervisor was excluded. They retired 
 for dinner, and, when they had gone, the ballot box with the 350 Brooks 
 votes was taken off by one of their number selected for that purpose, 
 and another box exactly the counterpart of it was introduced, contain- 
 ing 350 Baxter votes. After dinner the Baxter votes were received on 
 top of those that were already in, so that they finally counted all the 
 
Brooks votes for Baxter. That is a sample of the beautiful expression 
 of the will of the dear people. 
 
 Another instance of the changing of votes was by means of an old 
 paper hat-box, in which they had a lot of Baxter tickets, and these 
 tickets were taken out and substituted for Brooks tickets in the counting 
 of them. This and like frauds, sufficient to take a man three days to 
 describe, have been proved, and yet not one-tenth of the instances of 
 fraud that occurred at that election have been attempted to be proved. 
 Eiiough, however, were proved to establish this case. 
 
 THE EIGHT TO THE OFFICE DERIVED FROM RECEIVING A MAJORITY 
 
 OF THE VOTES. 
 
 Notwithstanding all the disfranchisement, all the stuffing of the bal- 
 lot-boxes, and all the frauds in receiving and changing ballots during 
 the day of election, yet, when the contest was over and the polls were 
 closed, and the grantors of the franchise of the office of governor had 
 done and completed all which it was necessary for them to do, and all 
 that they were capable of doing, to convey and vest that franchise, 
 Mr. Brooks, by reason of having received a large majority of the votes, 
 became vested of that franchise, and became and was from that moment 
 the dejure governor of the State of Arkansas, with the right of occu- 
 pancy of the office postponed until the end of the term of the then 
 incumbent. An office derived from an election is a franchise ; it is an 
 incorporeal hereditament which cannot stand in abeyance for a single 
 moment, but vests the very moment the franchise is cast, which, in the 
 case of an elective office, is the closing of the polls ; it must vest in- 
 stantly, although the enjoyment of it may be postponed, as, in the case 
 of a person dying intestate, the estate passes to his legal heirs at the 
 moment of his death; although au only son upon whom this estate is 
 cast may be years in establishing his identity by proof and showing that 
 he is the person entitled to the estate, yet, in contemplation of law, the 
 estate became vested in him from the moment that the intestate ceased 
 to exist. So, in this case, however long Mr. Brooks may be fraudulently 
 or forcibly kept from the enjoyment of the office, yet the franchise vested 
 in him when the acts of the grantors were completed, which was at the 
 closing of the polls on the night of the election. But we are not left to 
 conjecture, or even argument, upon this question ; it is settled by high 
 authority outside of our own State, and in our State, by a decision of 
 the supreme court, which is law unto us, the question is settled beyond 
 controversy. I read from State vs. Johnson, (17 Ark., p. 407.) This was 
 a case of quo warranto brought in the circuit court by the prosecuting 
 attorney against Johnson, requiring him to show by what authority he 
 exercised the office of mayor of Fort Smith. He had run for the office 
 against Rogers, and claimed to have received the most votes; the judges 
 of the election gave him the certificate of election, and he was commis- 
 sioned ; Rogers contested the election before a board created by statute 
 for that purpose, which board decided in favor of Rogers, and he was 
 commissioned and entered upon the duties of the office. It was not 
 claimed that the decision of the board who decided the contest was con- 
 clusive, but the case was treated as one which the courts must finally 
 decide, and the court, on page 413, use this language : 
 
 But at last, alter all this has been done, and the party thus commissioned, he derives 
 his authority as an officer, not from the proclamation of the judges ; not from the cer- 
 tificates of the election ; not from the abstracts made out for the governor, aud not 
 from the commissiou, but from the free choice and election of the people — not the 
 people in the popular sense of that word, but the people who are competent and 
 qualified electors when the votes were polled and the election held. 
 
6 
 
 4th Selden, page 07, People vs. Cook. The court decided as follows, 
 (see page 82 :) 
 
 It is by the popular expression by the voters through the ballot-box that a title is 
 derived to an elective office. The certificate of the board of canvassers is mere evi- 
 dence of the person to whom a majority of the votes were given. The certificate may, 
 indeed, be conclusive in a controversy arising collaterally or between the party holding 
 it and a stranger, but when this proceeding is instituted in the name of the people it 
 loses its conclusive character, and becomes only prima-faBie evidence of the right. 
 
 The same question is decided in California, in People vs. Holden, 28 
 California. The court decided as follows, (see page 129 :) 
 
 Title to office comes from the will of the people as expressed through the ballot-box, 
 and they have a prerogative right to enforce their will when it has been so expressed 
 by excluding usurpers and putting in power such as have been chosen by themselves. 
 To that end they have authorized an action to be brought in the name of the attorney- 
 general, either upon his own suggestion or upon the complaint of a private party, 
 against any person who usurps, intrudes into, or unlawfully holds or exercises any 
 public office, civil or military, or any franchise within this State. 
 
 THE RETURNS WERE "DOCTORED." 
 
 Now, we go along a little further. Appearances were very much 
 against Mr. Baxter's election, and it was deemed important and neces- 
 sary to raise the returns, to forge the evidence on which Mr. Baxter's 
 pretended title rested, and to establish by proof the existence of that 
 which, in point of fact, did not exist — that was, that Baxter had received 
 the most votes. In order to accomplish that they adopted the system 
 of raising the returns, as it is called in common parlance. That was 
 called " doctoring the returns," and the officials on Baxter's side used that 
 expression and are entitled to the credit of having originated it. They 
 sent out men with the returns first received in order to get the willing 
 officials to make changes in the result and to send in false, fraudulent, 
 and forged returns, showing a different state of facts from that which 
 were first reported. That is in testimony in the record. 
 
 Well, I have heard it said that Baxter knew nothing of them, and 
 that if it was all fraudulent, and all false, and all put up in this way, 
 as he was an innocent party, those returns gave him as good a title as 
 if they were all right. I presume that I must have read the law to 
 very poor purpose, for I never understood that a man could, on false 
 testimony, acquire an honest right to a thing which did not belong to 
 him. But there is evidence that Baxter was not entirely blameless in 
 this matter. I will cite one or two instances : Tom Martin testified- 
 that he was coming down to Little Rock, from some of the rural dis 
 tricts, with the clerk of his county, and met Baxter at Prospect Bluff 
 He was a strong partisan of Baxter's. Baxter had gone to bed, but 
 Martin went up to his room, and told him that the clerk of the county 
 was with him and had the county returns made out, so that they were 
 flexible and that they could be fixed up and raised to any extent 
 which was necessary ; and if he wanted the returns raised he would 
 like to have him indicate to him how much they should be raised. 
 He says that Baxter told him to go and see them at the Little Bock 
 and squeezed his hand. Martin said that he understood the significance 
 of that squeeze, and he went to Little Rock and the thing was fixed up. 
 Baxter, how ever, came on the stand and testified that the same conversa- 
 tion occurred. He told it about as it was. He said that he was tired and did 
 not want to be disturbed ; but, it seems that instead of resenting Martin's 
 suggestion in such a manner as to show that he did not approve of it, he 
 told him that he had nothing to do with it — to see them at the Rock ; he 
 
says he did not recollect the squeezing f Martin's hand. Now, I would 
 suggest that in these days of morbid sentiment on the subject of sensa- 
 tional literature, if a distinguished lady in this or any other city were 
 to receive a suggestion of evil, and, instead of resenting it in a manner 
 which became a virtuous woman, were to say " O, no ; go and see 
 somebody else ; I am not that kind of woman," and should squeeze the 
 hand of the man who made the suggestion, my impression is that upon 
 those facts alone, the newspapers would actually pronounce such 
 conduct imprudent. I am not sure but that there are persons within 
 the sound of my voice who are so prone to suspicion that they would 
 actually suspect her virtue, based on that statement; and yet the inno- 
 cent Baxter would have us believe that he was not a party to those 
 frauds. A western editor, an old bachelor, far advanced in life, alluding 
 to this testimony, said that it was the only romance which he had seen 
 in the whole Arkansas muddle ; and that all the romance in that was 
 that it brought to his memory a song which he had heard in early life; 
 and that all of the song which he remembered was " If you love me, 
 Sally, squeeze my hand." He said that while there was not much in 
 the thing when taken by itself, yet he presumed that the balance of the 
 song was in harmony with that idea. Now, this transaction of Baxter 
 and Tom Martin, taken by itself, did not prove much ; yet, inasmuch as 
 it was in harmony with this greatest of all human frauds, I take it that 
 it proves a great deal. 
 
 After all the disfranchisement, the changes in the ballots, the stuffing 
 of the ballot-boxes, and all the doctoring of the returns, still the 
 returns which were last sent up to the seat of government showed 
 that Mr. Brooks was elected. With all that they had done they could 
 not get rid of this one result. And here Mr. Baxter comes in again. 
 Colonel Hill swears that he was one of the friends of Baxter and one 
 of the flgurers for him in this contest; and, that as fast as they got the 
 returns from anywhere (he did not speak of official returns, but of 
 information as to what the vote was) he and Baxter and the secre- 
 tary of state would meet in a room which was taken for the purpose, 
 and would there figure up the returns, and that Baxter's own figures, 
 made on all the most favorable returns, even after they had been doc- 
 tored, still showed that Brooks had been elected by a considerable ma- 
 jority. Something else had to be done. 
 
 THE RETURNS OF THREE COUNTIES AND FORTY-EIGHT PRECINCTS 
 IN OTHER COUNTIES SUPPRESSED. 
 
 They then resorted to another system of settling this question. That 
 was to reject and exclude from the returns which were to be sent to the 
 presiding officer of the senate the returns of three whole counties which 
 had given large majorities for Brooks. They pocketed these, and turned 
 their attention to the balance, and when they were figured up, they 
 showed that Mr. Brooks was still elected. They then went to work and 
 excluded from the returns which were to be sent to the senate the returns 
 of forty-eight precincts in other counties, which precincts bad also given 
 large majorities for Brooks. When that had been accomplished, when 
 they had excluded the three counties and suppressed their vote, in viola- 
 tion of law, and had fraudulently and unlawfully suppressed the vote of 
 forty-eight precincts of other counties in the same manner, then they had 
 finally succeeded in doing what they had never done before — that is, in 
 getting the result in favor of Baxter. The vote, as officially counted, 
 stood — 
 
8 
 
 Baxter 41, 784 
 
 Brooks 38, 673 
 
 Majority for Baxter 3, 111 
 
 Brooks's gaiu on the returns 6, 113 
 
 By ballot-box stuffing and raised returns 3, 843 
 
 Side-poll 3, 327 
 
 Leaving a majority for Brooks on the vote, of 10, 173 
 
 In addition, Brooks was deprived, as shown by the proof, of. . 3, 617 
 The total majority for Brooks, as shown by the proof, should 
 
 be „ 13, 789 
 
 Leaving out here those which were stricken from the registration* 
 books, and did not vote, (for I do not insist that they should be counted 
 as a part of this case,) it still leaves a majority of 10,173 for Brooks. There- 
 fore, after all their other frauds, in order to produce a balance in favor 
 of Baxter, they were compelled to suppress those returns ; and they 
 sent to the president of the senate the returns, after deducting from 
 them those that had been suppressed as before stated. All this was 
 done under the supervision of Mr. Baxter, according to the testimony of 
 Hill. The computation was even made in Baxter's own handwriting, 
 and, according to the proof which we have taken, (only a portion of 
 what we might have taken,) we have established that Mr. Brooks was 
 over 10,000 votes ahead at the close of the polls on the day of election ; 
 that he was largely ahead when the first returns were sent to the seat 
 of government, was ahead when the " doctored" returns were received, 
 and was ahead, as shown by the full returns, the day the presiding 
 officer of the senate declared the result. 
 
 During all these times Baxter was plastering up his weak pretensions 
 by fraud and forgery, and every other means which his feeble ingenuity 
 could invent to get a balance in his favor. 
 
 THE LEGISLATURE WAS ORGANIZED BY FRAUD AND VIOLENCE. 
 
 We now come to the organization of the legislature, and the same 
 suppressed returns and fraudulent votes eutered into the election of a 
 considerable portion of that legislature. By virtue of these very frauds 
 by which Baxter was put in office, at least twenty-five members of the 
 house and ten of the senate were sent into the legislature, who were 
 never elected by the people, and who had no claim or pretence to be 
 elected. That is established by the testimony. Twenty-five members 
 of the house and ten of the senate were sent to the legislature by the 
 same frauds and the same violation of law by which Baxter was to be 
 declared governor. There is no question but that Brooks's friends had 
 a majority of the persons who were legally elected to both branches of 
 the legislature. They had on foot a proposition to organize this legis- 
 lature at O'Hara's Hall, in the city of Little Bock, and thus to have the 
 question of the election brought before Congress. The bottom fell out 
 of tbat proposition, and I was, for months, unable to tell how it hap- 
 pened. Finally I ascertained it. Some of the persons who ran on the 
 Brooks ticket for Congress were democrats, and some of their partisan 
 friends in town were anxious to have Baxter give them certificates of 
 their election. Hadley would not give them, except to one candidate, 
 and he was a republican. Smithee, who figures in this case, swears, 
 and some other witnesses swear, that they went to Baxter and made a 
 statement to him of those other eases — perhaps Gunter's and Cause's — 
 and told Baxter that if he would give those men certificates of their 
 
election to Congress, as soon as he was installed, they would get all the 
 democrats in the legislature who ran on the Brooks ticket to go into 
 the Baxter legislature, and thus deprive Brooks of a quorum in his 
 separate legislature. Baxter agreed to do it upon that basis, and twenty- 
 live or thirty of those men who had run on the ticket with Brooks, and 
 who never would have been elected but for that fact, abandoned Brooks 
 for the sake of procuring for their political friends a certificate of elec- 
 tion to Congress, and went over to the Baxter legislature. The organiza- 
 tion was thus effected, and Mr. Brooks and his friends were defeated 
 in their effort to organize a separate legislature. The thing went on, 
 and after Baxter had got the benefit of that trade, so far as he was con- 
 cerned, (he had got the legislature all in his own hands,) he turned 
 around and told Gunter and Gause that he did not see their case as 
 distinctly as he did at the time that proposition was made, and, there- 
 fore, he declined to give them the certificates. He declined to perform 
 his part of this contract. The legislature, as arranged after this trade 
 was made, was organized, supported by the State militia. The State- 
 house was surrounded by armed men ; the doors of both chambers of 
 the legislature were guarded by bayonets, and the secretary of state 
 made ont a list of such men as he, in his wisdom, thought proper to 
 have in that legislature, without any regard to whether they were 
 elected or not. They were picked and culled from the crowd. That 
 list was prepared to be furnished to the legislature, and sentinels were 
 placed at the door of each chamber, and passes, signed by the secretary 
 of state, were the only means by which any man could get in there to 
 present his credentials or to assert his claim. These are supposed to be 
 some of the evidences of a republican form of government. Baxter 
 made some remark in his argument here about the heel of oppression 
 having been on the people of Arkansas, and if he was here now, I would 
 take pains to see if I could not identify that heel. This guard, placed at 
 the doors of the legislature, kept out every man who was legally elect- 
 ed unless his name was on the list prepared by the secretary of state, 
 and let men in who had no pretense of being elected, if they were so 
 fortunate as to get their names on the list, for such only could get the 
 necessary pass. That legislature assembled, as was stated in the open- 
 ing argument, with the tacit understanding and arrangement that the 
 persons whose names were on the list, and who went into the legisla- 
 ture, should remain in it all through the term ; that no contests for their 
 seats were to be allowed, or that no man was to be allowed to be un- 
 seated on such contest. All this explaius why it was that Mr. Baxter 
 has been so exceedingly anxious to have all those questions submitted 
 to that legislature, which was as fraudulent in its organization as he 
 was in his preteusion. 
 
 Now, I wish to call the attention of the committee especially to one 
 or two points in the testimony which sustain this view of the case. I 
 read from Judge Warwick's testimony, on page 238: 
 
 Q. It has been stated that there was au understanding at the commencement that 
 no member was to be unseated ; what do you know about such au arrangement ? — A. 
 I cannot say that there ever was a positive arrangement to that effect. When the 
 lower house was organized, we (I mean the republicans) had au active working major- 
 ity iu it. There were a number of democrats whose seats were contested, aud there were 
 also some republicans whose seats were contested. Mr. Tankersley's district was con- 
 tested, and so was Mr. Sarber's, and so was Mr. Turner's. A large number of the con- 
 tests for seats, if investigated, would have been against republicans. 
 
 Q. The contests would have succeeded? — A. That I cannot say. 
 
 Q. But if they had succeeded, it would have been against the republicans ? — A. Yes. 
 There was no agreement, but there was a quasi understanding between Mr. Tank- 
 ersley, Mr. Sarber, and myself at the beginning, (perhaps at my own suggestion,) that if 
 
10 
 
 all those seats were contested it would take up one-half the time of the legislature to de- 
 termine them, and might perhaps develop some things which we did uot care to have 
 developed at that time. But my own reason for it was that these contests would take 
 up one-half or two-thirds' of the time of the legislature. There was a quasi under- 
 standing that we would do all we could to prevent any change being made in the com- 
 plexion of the house, whether by republicans or democrats. 
 
 Q. That is, you would prevent, as far as possible, the success of any contests on 
 either side ? — A. Yes. 
 
 Q. You and Sarber and Tankersley were all republicans? — A. Yes. 
 
 Q. And the majority of the house were republicans ? — A. Yes. The seat of Mr. Sump- 
 ter, a democrat from Hot Springs County, was in contest, and I think we gave him to 
 understand at the beginning that he need not have any apprehension, as we did not 
 propose to have any changes made in the organization of the house. 
 
 Q. That house was organized on the list furnished by the secretary of state ? — A. 
 Yes. 
 
 Q. The members went in under passes ? — A. I believe we all had passes. 
 
 Q. Nobody else was allowed in at the preliminary organization ? — A. No, sir. 
 
 Q. And afterward you and Tankersley and Sarber, three republicans, with a republi- 
 can majority there, had a quasi understanding that no contests would be allowed to 
 succeed, aud that no changes should take place in the body ? — A. I think we had that 
 understanding before we went in. 
 
 Q. That you would go in on that roll, and that no changes of members should be 
 made ? — A. Yes, sir. 
 
 Q. And you gave Sumpter to understand that that was the fact? — A. My recollec- 
 tion is that Sumpter was given to understand that that would be the case. 
 
 Q. When the resolution to that effect was adopted afterward, was it not voted for 
 by republicans and democrats almost unanimously ? — A. I have not thought about the 
 matter since, but my recollection now is, that there was no dissenting vote against the 
 resolution. 
 
 Of course not. They were all in. The poor fellows who were en- 
 titled to their seats, and who were trying to get in, did not have a 
 chance to vote. I presume unanimity can be secured in that way easier 
 than in auy other in the world, unless it is under Governor Lowe's theory 
 of the unanimous expression of public sentiment at the last election in 
 Arkansas, with 40,000 armed men to make the balance unanimous. 
 
 Mr. Warwick's testimony proceeds : 
 
 Q. You agreed that the ins should stay in, and the ins all voted for it? — A. Yes ; my 
 recollection is that that resolution was adopted somewhat late in the session. 
 Q. The understanding, however, was made before you organized ? — A. Yes. 
 Q. Did Secretary Johnson know of that understanding? — A. Not that I know of. 
 
 Now, that is the organization of the house to which Mr. Baxter says 
 he was willing to submit this case, and which he believed did have 
 jurisdiction of the matter, if it was willing to take it — a legislature 
 counted in partly by the same frauds by which he was himself counted 
 in ; and most of those who ran on the ticket with Mr. Brooks, and who 
 were elected, were induced to abandon the side they had run upon, and 
 to join the Baxter side, under the promise and contract made with 
 Baxter. It was a close corporation which would let none of its seats 
 be successfully contested ; and that is the legislature, with all the 
 fraudulent members in it, to which Mr. Baxter was willing to submit 
 the question whether his election was free from fraud. The testimony 
 shows a great many cases where men who had overwhelming majorities 
 for the legislature, aud who attempted to contest for their seats, were 
 defeated on some trivial, contemptible ground, which it was a disgrace 
 even to that legislature to insist upon. 
 
 1 will now read to the committee one or two extracts from the testi- 
 mony to show how the house was organized. I read from Sheriff Oli- 
 ver's testimony, on page 338 : 
 
 Q. State what you know about the election of 1872. — A. I know so much about the 
 electioo of 1872 that it would take me a week or two to tell it. 
 
 Q. What do you know about the organization of the legislature on the first Monday 
 
11 
 
 of January, 187:? ? — A. If I remember right, I think they furnished me with a list of 
 members, and wanted me to let in only those who were elected. I was door-keeper of 
 the house. 
 
 Q. Who furnished you with the list ? — A. I think Secretary Johnson himself. I 
 know I had two or three talks with Baxter about that before that. 
 
 Q. Did Baxter ask you to act as door-keeper ? — A. I talked with him a good many 
 times about that and about his getting possession of the house. I had a great many 
 talks with him. In fact I talked with him nearly every night about getting possession 
 of the State-house and keeping men there and holding possession of it. The reform 
 party was about to hold a convention there, and it was agreed that all State conven- 
 tions should be held in the State-house. I think this convention was to meet on a Sat- 
 urday, and we were afraid that the members of the convention and tbe Brooks members 
 of the legislature would get in together and hold the hall, and it was in order to prevent 
 that that I was there, and had conversations with Brooks and Johnson, and also, I 
 think, with Bowen. 
 
 Q. You ran on tbe Baxter ticket? — A. Yes, sir. 
 
 Q. And that was your theory of defense up there ? — A. Yes. 
 
 Q. That convention met and organized in another place in town ? — A. Yes. 
 
 Q. The convention had adjourued on Monday ? — A. Yes. 
 
 Q. Then on Monday you did not expect any convention in the State-house ? — A. No. 
 
 Q. Were you not, in point of fact, put there as door-keeper to keep out everybody 
 except those who were on the list ? — A. On Monday I had a lot of special deputies and 
 kept them there, but the house was really in possession of General Upham. 
 
 Q. Were any persons allowed to pass in except those whose names Secretary John- 
 son had put on the list as persons whom he called members of the legislature ? — A. 
 Not till after the organization of the legislature, until they took charge themselves by 
 their own sergeant-at-arms and door-keepers. 
 
 There is the legislature as organized for the purpose of making this 
 declaration of the vote for governor. There is a legislature organized 
 as part and parcel of the same general programme of fraud by which 
 the result of that election was to be declared, without regard to the 
 votes. There is a large amount of testimony on that point, but I will 
 not trouble the committee with reading it. 
 
 After that legislature was thus organized, the next thing was the can- 
 vassing the vote for governor, and as we have to go over the whole of 
 that ground, I will call the attention of the committee to the provisions 
 of the law on that question. 
 
 THE COUNTING THE VOTES BY PRESIDENT OF THE SENATE, MERELY 
 
 MINISTERIAL. 
 
 Section 19, of article G of the constitution, provides that — 
 
 All the returns of each election for governor, lieutenant-governor, secretary of state, 
 treasurer, attorney-general, auditor, and superintendent of public instruction shall 
 be sealed up and transmitted to the seat of; government by the retnrniug-officers, 
 directed to the presiding officer of the senate, who, during the first week of the session, 
 shall open and publish the same in the presence of the members then assembled. 
 
 Now, the reason I speak of that is that much stress has been placed 
 on the question that the legislature there solemnly decided that Baxter 
 was elected. Importance has been given to the fact that the president of 
 the senate made a ministerial count. The newspapers have been full 
 of it ; and the attorneys on behalf of Baxter's fraudulent government 
 have insisted that that was a declaration of the right of Baxter; aud, 
 in the voluminous documents which Baxter sent to the President, and 
 which have been perhaps more voluminous than substantial on legal 
 points, he has invariably urged that argument as if that was conclu- 
 sive. 
 
 Now, in the first place, under this section (19) of article 6 of the con- 
 stitution, the senate has nothing to do with it. There need not be a 
 quorum present at the time. It does not say that the president of the 
 senate should open the returns in the presence of the senate. It says 
 
 
12 
 
 that be should opeu and publish them iu the presence of the members 
 then assembled. Three members would answer the purpose as well as 
 a quorum, so far as the reading of this section is concerned ; for, all 
 through the constitution, whenever the house or the senate is spok m 
 of, it is spoken of as a body, as a quorum of each house — after hav- 
 ing defined what a quorum should be. Therefore, it is simply a personal 
 act of the president of the senate to make that count and publication, 
 and the senate has nothing on earth to do with it. The act is purely 
 ministerial. The president of the senate has no right to do anything 
 except to compute, to add up, the returns from the different counties as 
 they are sent to him sealed, and to declare who, as appears from those 
 returns, has the most votes. Now, to contend that that would set- 
 tle the question of who was governor of Arkansas, would be to say that 
 the people did not elect the governor, but that it all lay with the presi- 
 dent of the senate ; or, we might go still further and admit (as I pre- 
 sume was the case in this instance) that the president of the senate was 
 innocent in this matter, that he knew nothing at all about it, (as is the 
 testimony,) but that the question of who was the governor was to depend 
 on the secretary of state or on the former president of the senate, (as 
 was the case here,) who sent the returns to that presiding officer ; or, 
 we might carry it still further and say that the people of Arkansas are 
 beholden, not to their own free choice, but to tbe careful discharge of 
 duty on the part of the porter who carried in those returns ; and, if he 
 dropped one by the wayside, which changed the result, or if he stole 
 one out, he could, by any of these acts, destroy the franchise of the 
 people of the State; that would be carrying the doctrine further than 
 anybody on the other side but Baxter himself would carry it. He would 
 carry it that far, but I do not suppose that any lawyer on the other side 
 but himself would do it. 
 
 I will now read a short extract from the testimony of the president 
 of the senate on that point. Mr. John M. Clayton testifies, on page 145, 
 as follows : 
 
 Question. Were you tbe presidium officer of the seuate that was organized ou tbe first 
 Monday of January, 1873 ? — Answer. I was. 
 
 Q. Were you tbe presiding officer of tbe senate previous to tbe assembling of tbe 
 senate in that session ? — A. No, sir ; I was not. I was elected on tbe first day of tbe 
 session as president of the senate pro tern. 
 
 Q. Mr. Hadley, who bad been president pro tern., was acting as governor at that 
 time?— A. Yes. 
 
 Q. Leaving the presidency of tbe senate pro tern, vacant? — A. I suppose so. 
 
 Q. Did you receive tbe returns from tbe executive officer of the senate as presiding 
 officer of the senate ? — A. Yes, they were handed to me. 
 
 Q. You did receive them through the mail ?— A. No, sir ; I did not take them out of 
 the post-office. 
 
 Q. By whom were they handed to you ? — A. By Governor Hadley's private secretary. 
 
 Q. Did you open those returns? — A. Yes; I opened them in the presence of both 
 houses of the general assembly, on the same day that I received them, and probably 
 less than two hours after I received them. 
 
 Q. What did you do with them? — A. 1 simply tore open the envelopes, took out the 
 retnrus, opened them, and handed them to the seci'etary of the senate, who read them 
 aloud, and the i"esults were taken down by two tellers, one elected by the senate and 
 one by the house, and on their figures I, as presiding officer, declared the result. 
 
 Q. Look at those papers (handing to the witness a bundle of returns) and see how 
 much you know about them being the same ones. — A. (After examining the papers.) 
 These look to me like the same ones. 
 
 Q. They were in envelopes similar to these?— A. Yes; I have no doubt that they 
 are tbe same returns. 
 
 Now as an evidence that they did not regard that as a j udicial or legisla- 
 tive action on the subject, the journal of this joint meeting of the legisla- 
 ture shows that Mr. Thrower, a member of the legislature from Ouachita 
 
13 
 
 County, offered a resolution before that body, and a point of order was 
 raised upon him, that the two houses had met for the simple purpose 
 of counting up those returns, and declaring the result, and that they 
 had no right to do any other business. The point of order was sus- 
 tained, and his resolution was ruled out of order. The question has 
 been mooted that there was a full and fair chance to discuss the whole of 
 the subject-matter at that time before both houses, but that is not true. 
 There was no opportunity to discuss anything. They held there, (and, 
 I think eorrectly, according to law,) that they were not acting in a legis- 
 lative capacity at all ; that they were simply there as witnesses and by- 
 standers, to see the president of the senate not declare who was elected 
 from the whole vote cast, but compute the numbers on such returns as 
 had fallen into his hands, and to make the declaration of w r hat that 
 computation amounted to. 
 
 The Chairman. Was this resolution of Mr. Throwers in relation to 
 the election H 
 
 Mr. Rice. Yes, sir ; it is in testimony that he offerred a resolution in 
 reference to the election. He was a friend of Brooks ; and they silenced 
 him on the ground that there was no jurisdiction in the joint meeting 
 of the two houses. 
 
 BROOKS'S PETITION FOR CONTEST BEFORE THE LEGISLATURE. 
 
 The next point which we come to in the investigation of this case is 
 the presentation of Mr. Brooks's petition to the legislature. There has 
 been a good deal said about that. I will now read the concluding por- 
 tion of section 19, article 6, of the constitution of 1868 : 
 
 Contested elections shall, in like manner, be determined by both houses of the gen- 
 eral assembly in such mauner as is, or may hereafter be, prescribed by law. 
 
 Under that section Brooks presented his petition for contest. A vast 
 amount of misrepresentation has been indulged in on that question. It 
 has been said that the legislature solemnly considered that case ; that 
 the petition was received and read and acted upon ; and that its rejec- 
 tion amounted to a foreclosure of Brooks's rights. Now, such is not the 
 fact. Not one word of it ^is true, except that the petition was offered, 
 and that it was rejected. I admit here that the record (the legislature 
 being then in the Baxter interest) shows that the petition was read; and 
 yet the testimony in the case, even by the officer who made the record, 
 and by other persons who were present, shows conclusively that it never 
 was read. However, I attach no importance to that except that I pro- 
 pose to state the facts correctly. That petition was presented to the 
 lower house of the legislature by Mr. Thrower, (the same man who had 
 undertaken to raise the question at the time the count was made;) that 
 petition concluded with a prayer for leave to introduce proof. I may 
 as well read from Gould's Digest the provisions in regard to contested 
 elections. It is — 
 
 Sec. 101. If any person contest the election of governor, he shall present his petition 
 to the general assembly, setting forth the points on which he will contest the same, 
 and the facts which he will prove in support of such points, and shall pray for leave to 
 introduce his proof; and a vote shall be taken by yeas and nays, in each house, whether 
 the prayer shall be granted. 
 
 Sec. 102. If a majority of the whole number of votes of both houses shall be in the 
 affirmative, they shall appoint a joint committee to take the testimony on the part of 
 the petitioner, and also on the part of the person whose place is contested, with power 
 to send for witnesses; who may issue warrants, under the hand of the chairman, to 
 any judge or justice of the peace, to take the deposition of witnesses, at such time 
 and place as the warrant shall direct; and the points to which the testimony is to b© 
 taken shall be set forth in such warrant. 
 
14 
 
 Thus it is left discretionary with the legislature, as to whether it will 
 entertain the contest or not. Mr. Thrower did not read, but he intro- 
 duced, that petition, and he moved that the prayer of the petition be 
 granted. According to the oral testimony in this case, it was never 
 read. Some other member then moved, as a substitute for Thrower's 
 motion, that the petition be rejected, and the petition was rejected, and 
 there the matter ended. This took place in the lower house ; it never 
 appeared in the senate. Now we are told with all seriousness that that 
 was a settlement of this whole question; that the great principles of 
 constitutional government; that the rights of the people of the State; 
 that the franchise of Mr. Brooks as the legally elected governor of the 
 State, are all swept away by the refusal of a legislature to entertain 
 a petition to contest the election and to investigate these frauds. 
 That would seem to be a pretty strong proposition. Now, in the 
 first place, if the legislature is, by section 19 of article 6 of the 
 constitution, clothed with judicial authority to try this question if 
 the judicial power of the courts has been vested in the legislature for 
 the purpose of trying such a case, then we must apply the rules of ju- 
 dicial proceedings to it; we must apply the forms and principles of law 
 to it, and see what this amounts to. Does the presentation of a petition to 
 one house of the legislature and the summary rejection of that petition 
 amount to an adjudication of the case % Even that has been urged. I un- 
 derstand that it was urged in the argument on the other side that it does 
 amount to a settlement of the whole case. If that is an adjudication, it is 
 not upon the principles of the common law. The most that can be said of 
 it is that the proceeding was commenced in that tribunal, (created as a 
 tribunal under the nineteenth section of article of the constitution,) 
 and that tribunal struck the plaintiff's petition from its records. Does 
 that bar the right? But go still further, and say that the rejection of 
 that petition amounts to deciding that it did not state facts sufficient to 
 constitute a cause of action or to entitle the petitioner to the relief de- 
 manded. It would be simply like a general demurrer to a declaration in 
 court. Now, I will submit to the gentleman on the other side whether 
 there is a lawyer here who claims that, if a plaintiff briugs a suit and is 
 defeated and thrown out of court upon a general demurrer to his dec- 
 laration or complaint, that that is a bar to his cause ot action. 
 I never heard of such a proposition until I heard it here. I grow wiser 
 as I grow older. Was the petition ever decided upon its merits "\ Not 
 at all. The practice differs in the various States according to the stat- 
 utory regulations. In the State of New York, (whose practice we have 
 undertaken to follow in Arkansas,) my recollection of the law is that, 
 even after issue is joined, if the attorney for the plaintiff in opening his 
 case makes a defective statement which does not show him entitled 
 to recover, the court has a right to non-suit hi in on his statement. And 
 nobody would contend that that is a bar. Under the principles of the 
 common law, the plaintiff has a right to go on to trial, to argument ; and, 
 at the conclusion of the argument, he has a right to suffer a non-suit. 
 That is so in every State of the Union, and that non-suit is not a bar. 
 In most of the States of the Union he has a right to dismiss his case, 
 or suffer a non-suit at any time before the verdict is announced. 
 
 The Chairman. I see by reading that statute of yours that it does 
 not seem to have been the intention of the legislature to give a man 
 who desires to contest the right to file his petition as a matter of right, 
 but it goes on to say that he may file a petition, and the vote shall be 
 taken by yeas and nays, as to whether he shall have leave to contest. 
 Now, suppose that that petition had been read, and that the legislature 
 
15 
 
 bad gone on with the discussion of it fairly, and that then the question 
 had been taken, in the manner provided by law, as to whether he should 
 have leave to tile his petition and present bis proofs, and suppose the 
 legislature decided against it, would that have made any legal difference 
 in the result ? 
 
 Mr. Rice. I think not. Even if the legislature act judicially in such 
 matters, I don't think it would amount to a bar. The authorities are 
 conclusive that before a claim is barred, res adjudicata, so as to foreclose 
 the rights of the plaintiff, there must have been an adjudication, not 
 upon technical points raised in the case, but an adjudication upon the 
 merits of the controversy. 
 
 In this case the merits of the controversy were not investigated before 
 the legislature. The house of representatives refused to allow Mr. 
 Brooks to file his petition and refused in any manner to enter upon the 
 investigation of his case. 
 
 The Chairman. Suppose he had been permitted to file his petition 
 and to take his proofs, and that there had been a decision upon the 
 merits, as you call it, by the legislature, do you concede that that would 
 be a bar to him °? 
 
 Mr. Rice. If the legislature acts judicially in these contests and had 
 tried and adjudicated this case upon the merits, deciding against Mr. 
 Brooks, (unless the tribunal could have been impeached for fraud in 
 its organization,) it would have been a bar so far as to preclude Mr. 
 Brooks from presenting his case to any other judicial tribunal; but I 
 do not admit that it would preclude Congress from securing to the peo- 
 ple of Arkansas a republican form of government, administered by the 
 officers lawfully chosen by themselves ; and that body would not be 
 estopped from looking into the frauds by which the people of a State 
 had been robbed of their suffrages, simply because the question had 
 been decided by a tribunal whose existence depended upon sustaining 
 these frauds. Mr. Baxter says that if there was anything wrong or 
 unfair in the rejection of Mr. Brooks's petition for contest, it was no 
 fault of his ; that he was anxious to get rid of the office of governor 
 whenever he could do so honorably. This is a strange statement, taken 
 in connection with the proof in this case. If he had wanted to get rid 
 of the office of governor, which he knew he fraudulently and wrong- 
 fully held, it would seem that he might have devised some meaus to 
 have transferred it to Mr. Brooks, the person to whom he knew it right- 
 fully belonged, and that he could have accomplished this with far less 
 labor and expense than he bestowed upon his dishonorable efforts to 
 prevent Mr. Brooks from asserting his claim to the office. But Baxter 
 says upon his honor that he had nothing to do with preventing the con- 
 test before the legislature. Now I propose to read a little testimony 
 upon that subject and see what we can gather from it. We are investi- 
 gating a conspiracy, and all who have ever had the misfortune to be 
 employed as counsel to develop a conspiracy know the very great in- 
 convenience of establishing the case when it has to be proved by wit- 
 nesses who are unwilling to disclose what they know. Judge Stephen- 
 son, who has figured considerably in this case, who was a strong Baxter 
 adherent and one of his private counsellors and friends, says, on page 
 269: 
 
 Q. State what you know in reference to the contest of Brooks, so far as anything 
 that Governor Baxter did to prevent an investigation. — A. It would be very difficult 
 for me to do so iu that shape of the question. I know that there was a concerted ac- 
 tion on the part of leading republicans here to prevent that contest, and I know that 
 Governor Baxter was a party to that concerted action. There never has been any dis- 
 pute on that point. 
 
16 
 
 Yet Baxter in his argument here pledges himself, on the honor of a 
 gentleman, that he had nothing to do with preventing that contest, but 
 would lead us to infer that in that matter he was as placid as the 
 unmoved surface of a summer sea. He was perfectly indifferent to the 
 question, and the legislature could do as it pleased; yet there is the 
 testimony of one of his then most active supporters, aiders, and abettors, 
 and he swears that there is no dispute upon the point ; that there was 
 what we would term, in plain language, a conspiracy to prevent that 
 investigation, and that Baxter was a party to that conspiracy. In the 
 face of that testimony and of a vast amount of like testimony, Mr. Baxter 
 must excuse me if I take the statement of the witnesses, even against 
 his word on the honor of a gentleman. 
 
 After the legislature had voted with such singular unanimity in favor 
 of rejecting Mr. Brooks's petition, which has often been alluded to as 
 showing that the whole State rose up and called Baxter blessed, and 
 that the people were all for him with a devotedness unknown even to 
 the ancient apostles, yet, to cover up or bridge over some real or sup- 
 posed difficulty growing out of the transaction, Baxter appointed forty- 
 one members of that legislature to office, every one of whom had voted 
 to reject Brooks's petition. Now, it is difficult to explain how, with his 
 honor as a gentlenlau, and consistent with fair dealing in the transac- 
 tion, such a thing occurred, unless it was based upon the well-received 
 maxim, that "the laborer is worthy of his hire." All these members are 
 to-day, or were until they went the way of all flesh under the new con- 
 stitution, performing duties and drawing salaries as a compensation for 
 violating the rights of Mr. Brooks. 
 
 THE LEGISLATURE DUES NOT ACT JUDICIALLY IN CONTESTED ELECTION 
 
 CASES. 
 
 But I will remark here, that I have serious doubts whether the legis- 
 lature perform any judicial functions in determining a contested election 
 under section 19 of article 6 of the constitution. That section provides 
 that the presiding officer of the Senate, during the first week of the 
 session, shall open and publish the returns in the presence of the mem- 
 bers then assembled. This is merely a primary ascertainment as a 
 basis for a prima facie case for the person in whose favor the result is 
 declared. If the person against whom the declaration is made is not 
 satisfied with the declared result, he may contest the same; and the 
 same section provides that "contested elections shall likewise be deter- 
 mined by both houses of the general assembly in such manner as is or 
 may hereafter be prescribed by law." Is this determination parliamen- 
 tary or judicial 1? The declaration by the president of the senate was not 
 judicial, and the section provides that contested elections shall likewise 
 be determined, &c; that is, they shall be determined for like purpose, 
 and with like effect. If this be correct the determination of a contested 
 election by the legislature is only a parliamentary determination for 
 the purpose of establishing a prima facie case, and is not a judicial 
 determination. The constitution of 183G, section 3, article 5, provides 
 that, " contested elections for governor shall be determined by both 
 houses of the general assembly in such manner as shall be prescribed 
 by law." This was not regarded as a judicial proceeding, as is evident 
 from the fact that in the act carrying into effect this provision of the 
 constitution of 1836, the legislature left it discretionary whether or not 
 they would entertain the contest. This discretion is seldom, if ever, 
 extended to judicial tribunals. 
 
 Section 19 of article G of the constitution of 1868 was evidently taken 
 
17 
 
 from section 3, article 5, of the constitution of 183G, which limits the 
 contest to the ofhee of governor ; ami as that limitation is omitted in 
 the constitution of 1808, it is fair to presume that the convention in- 
 tended to authorize the legislature to determine contests, not only for 
 the office of governor, but for every other elective office. It certainly 
 did not iuteud to clothe the legislature with that much judicial power, 
 either exclusively or concurrent with the courts. 
 
 Section 1, article 4, constitution of 18G8, provides that " the powers of 
 the government are divided into three departments, the legislative, the 
 executive, and the judicial." 
 
 Section 2 of the same article provides that " no person belonging to 
 one department shall exercise the powers properly belonging to another, 
 except in the cases express!;/ provided in this constitution." 
 
 Section 1, article 7, provides that " the judicial power of the State 
 shall be vested in the senate sitting as a court of impeachment, a su- 
 preme court, circuit courts, and such other courts, inferior to the supreme 
 court, as the general assembly may, from time to time, establish." 
 
 Section 5 makes the circuit courts superior courts of general juris- 
 diction, and provides that the legislature may change their jurisdiction. 
 
 Section 522 of the civil code provides that in lieu of quo warranto, 
 or information in the nature of quo warranto, actions may be brought to 
 prevent the usurpation of office. 
 
 And section 4 of article 7 expressly gives the supreme court original 
 jurisdiction of quo warranto. Now, aside from cases of impeachment, 
 every conceivable judicial power is vested in the judicial department, 
 where, in the language of the constitution, it properly belongs. 
 
 The legislature cannot exercise any judicial power unless it is expressly 
 given by the constitution. The provision in section 19, article 6, that 
 the legislature should determine contested elections, does not neces- 
 sarily raise the implication that judicial power was intended to be con- 
 ferred, and certainly the language of that section does not expressly 
 confer on the legislature judicial power in hearing that contest, when 
 the language would more reasonably imply that it was intended as a 
 legislative act. 
 
 Much stress has been laid on the word " determine," as used in the nine- 
 teenth section, but that word, as used in the constitution of 1808, has 
 much more of a legislative thau judicial significance. 
 
 Section 14, article 5, authorizes each house to determine the rules of 
 its proceeding's. 
 
 Section 35, article 5, that upon veto, the vote of both houses upon 
 reconsideration shall be determined by yeas and nays. 
 
 Section 3, article 7, provides that the terms of the judges of the su- 
 preme court shall be determined by lot. 
 
 Section 2, article 15, provides that the legislature may determine the 
 mode of filling all vacancies in all offices. None of these were judicial 
 determinations, and the word determine, as used, implies legislative ascer- 
 tainment rather than a judicial decision. Therefore we insist that the 
 legislature had no judicial power over the question, and especially no 
 such exclusive judicial power as would oust the judicial department, 
 which has been universally recognized and acted upon by the courts of 
 England and America for 'nearly a century. There is not a State in the 
 Uniou but what recognizes that the judicial department has jurisdiction 
 to pass upon and decide the result of an election. 
 
 The next point that occurs in this case is the quo warranto. It will 
 be remembered that the constitution expressly confers upon the supreme 
 court jurisdiction to issue the writ of quo warranto and hear and deter- 
 mine the same. 
 
 2 AEK 
 
18 
 
 THE QUO-WARRANTO CASE AGAINST BAXTER IN SUPREME COURT, AND 
 PROCLAMATION OF MARTIAL LAW. 
 
 This quo-warranto proceeding has frequently been spoken of as a case 
 of Brooks against Baxter. Such was not the fact. jS"o such case was 
 ever pending in the supreme court. The petition for a quo warranto was 
 filed by the attorney-general, on behalf of the people of the State, against 
 Elisha Baxter, charging him with having usurped the office of governor, 
 and asking that a writ issue requiring him to show by what authority 
 he exercised the iunctious of the said office. This jurisdiction is ex- 
 pressly given to the supreme court by section 4, article 7, of the consti- 
 tution. 
 
 The petition recited that it was on the relation of Joseph Brooks, 
 which was afterward either stricken out, or treated as stricken out. Mr. 
 Baxter says in his argument that he employed counsel to defend the 
 quo warranto on behalf of the State. The people of the State claimed 
 that Baxter had usurped the office of governor, and through their attor- 
 ney-general instituted this proceeding to oust him. The State was rep- 
 resented by the attorney-general, and not by the attorneys employed by 
 Baxter. 
 
 Baxter employed counsel to defend his personal suit, and paid them 
 out of the funds of the State. He was not sued as governor. That 
 quo warranto was not against him because lie was governor; it was 
 against him because he was not governor, and was attempting to per- 
 form the duties of the office, and was acting therein as a usurper. 
 
 But as that quo warranto cuts a considerable figure in this case, and 
 much has been claimed for the decision rendered in it, I may be excused 
 for speaking of the surroundings of that case. 
 
 Up to the time of that decision nothing had ever been decided in 
 Arkansas on the question of the construction of the constitution and 
 acts of the legislature conferring jurisdiction on the courts, or as to the 
 exact nature of that provision of the constitution. The question of 
 whether the legislature acted judicially in cases of contested elections, 
 and, if so, whether the jurisdiction was concurrent with the courts, or 
 was exclusive, was not an adjudicated question, but rested simply upon 
 construction of the constitution and statutes. 
 
 It has been supposed by the profession that the construction of the 
 constitution and statutes of a state devolved upon the courts, and not 
 upon a party litigant, but this case seems to have proceeded upon the 
 theory that Baxter had a right to decide these questions for himself in 
 his own case aud resort to force to resist any decision not in accordance 
 with his views. 
 
 Mr. Harrington's testimony shows the atmosphere that surrounded 
 the court when the case was decided. On page 36" of the testimony 
 taken in Washington he says : 
 
 I am United States district attorney for the eastern district of Arkansas. I do not 
 know that I can state anything which, will be in the nature of evidence before this 
 committee. But the chairman asked one of the other witnesses why those who voted 
 for Baxter in the election were now all supporting Brooks, and why those who are sup- 
 porting Baxter were all Brooks men at the last election. Prior to the time of the 
 application for a quo ivarrantoj of which Judge McClnre spoke, I discovered by the 
 morning papers that Baxter had summoned a body-guard to the executive office. 
 Being a political and personal friend of the governor, and, in fact, on confidential 
 terms with him, I immediately went down to bis office and there found a body-guard of 
 about thirty men. It was not constituted of the Arkansas State guard, but was com- 
 posed of the class of young men to which the last witness referred — reckless young 
 men, without any visible means of support, gamblers, unreconstructed men who have 
 a bitter feeling to all northern men, and to all law and order, in fact. Such is their 
 
19 
 
 public reputation. As soon as I got through them and into the governor's room, being 
 subjected to a great many insults by them, I asked the governor what it meant, lie 
 said he had learned that the attorney-general was going to apply for a writ of quo war- 
 ranto against him, and that he was not going to submit to it. I told him I thought he 
 must be misinformed ; that I did not think the attorney-general would apply for any 
 such writ, as he was elected on the same ticket with him : that such a course would 
 not he to his advantage ; and that no one else but the attorney-general could apply for 
 it. Governor Baxter said that ho was reliably informed that such was the, ease. I 
 asked him why he had taken for a guard those men, and why he had not taken the old 
 governor's guard ; and I referred to their captain, Captain Rose, as a good soldier, and 
 asked him why he did not call upon him. His answer was, " Because this is policy, 
 and I want men who will resist the officers of the court, and the court itself, if neces- 
 sary ; because I do not intend to let them interfere with me at all." We had consider- 
 able conversation on the subject. I tendered him my services, and said that I would 
 select men as his guard, if he had no confidence in Captain Rose's company. I said I 
 would select men who were republicans. I said that it would injure him throughout the 
 State. I said that Judge English represented the element of the democratic party, from 
 which we could not hope to recruit. He said that English represented the element 
 which would resist the decree of the court ; and he said that if he was not interfered 
 with he would call the legislature together and afterward have the constitution 
 amended. The court decided at the time that it had no jurisdiction, and the guard 
 was discharged. I still kept on friendly relations with him. He said that- 1 was the 
 only republican who had come to see him for some time, while he was sustained by this 
 guard. His reliance seemed to be on the democratic party. Judge. English is usually 
 their representative. As late as ten days prior to the decision of the case by Judge 
 Whytock, Governor Baxter used to say that if they attempted to interfere with him, 
 he would call the legislature together and have a convention and overturn the gov- 
 ernment. I said to him that that would turn himself out, and that they would have 
 no use for him. He said, " Yes, they will ; they agree to run me for governor, and, if I 
 desire, they will elect me to the Senate to succeed Powell Clayton." These things are 
 well known in Arkansas. I betray no confidence of the governor in this remark. That 
 is why republicans who supported Baxter are willing now to take anybody in prefer- 
 ence to him with that element behind him ; and that is why that element is support- 
 ing Baxter, because they want a new deal and reconstruction reconstructed. They are 
 the outs now, and they are against the ins. 
 
 I read now from the testimony of Mr. Baxter, page 410 : 
 
 Judge McClure, in his testimony, says : " Mr. Baxter never at auy time recognized 
 this thing as a question for the courts." That is true. He says further: " During the 
 pendency of the quo-warranto decision, which he thought might affect his right to hold 
 the office, he had perhaps eighty or ninety men in the state-house, armed with muskets" — 
 that is not true, nor any part of it — " and said that he would not submit to the judg- 
 ment of the court in any event." That is true. I have said that frequently. "He as- 
 sumed to himself the right to say that the court had no jurisdiction in the case." That 
 is correct. " I have been informed that on the day when the decision was rendered he 
 had his brigadier-general in the supreme-court room with a proclamation of martial 
 law, and with instructions to disperse the court in case it granted the writ." No brig- 
 adier-general ever had such proclamation in his pocket. I confess freely ami frankly 
 that I had prepared a proclamation of martial law, and had it in my owu pocket, and 
 that I ilid intend, in the event of a court assuming jurisdiction, to disperse it, on the 
 ground that it had no jurisdiction of the case, as it has itself decided. I regarded it as 
 revolutionary, and I looked upon the whole matter as being intended to revolutionize 
 the government. 
 
 Up to that time do court had decided that question. I will now read 
 from his testimony, on page 420, on the same subject: 
 
 Q. I understood you to say that previous to the trial of the quo-warranto case you 
 had determined to pay no attention to the decision of the court. — A. I had determined 
 not to be ousted by the decision of the court. 
 
 Q. You intended to break up the court? — A. Not exactly to break it up. I had in- 
 tended to declare martial law. 
 
 Q. Had there been, up to that time, any decision on that'question by any court '? — 
 A. No. sir. 
 
 Q. You had determined it on your own judgment of the law ? — A. On my own judg- 
 ment, as I do always. 
 
 Q. You stated that you intended to file an answer in that case — in Judge Whytock's 
 case. — A. I so instructed my attorneys — to prepare an answer and have it ready. 
 
 Q. And to litigate the question ? — A. Yes, sir. 
 
 Q. Did you intend, if the case were decided against you after litigation, to abide by 
 that decision ! — A. I intended to take it to the Supreme Court, and if a fair and proper 
 decision were given, that would put an end to the matter. I did not intend at any 
 tm e to be ousted by the judgment of any State court. 
 
20 
 
 I will now read from Colonel Oliver's testimony, page 338 : 
 
 Q. In reference to this quo-warranto proceeding, did you, as sheriff, attend on the 
 supreme court in person? — A. I was there iu person. 
 
 Q. Previous to the meeting of the court was not this city quiet ? — A. Yes, sir. 
 
 Q. There were no disturbances? — A. No, sir. 
 
 Q. There was no militia in service? — A. The militia had been all mustered out prior 
 to that time, until suddenly, oue night about 12 o'clock, I was informed that Baxter 
 had surrounded himself with a lot of militia. That was just before the meeting of the 
 court. At first I did not believe it. I thought that some of the folks were joking with 
 me, and wanted to fool me. I went around and came down the street aud I saw some 
 of the guns and bayonets. The first man that I recognized was Blocher, who was on 
 duty. I looked around and saw that they were all democrats, and that most of them 
 were members of the Knights of the White Camelia. I thought it was a queer kind 
 of militia. 
 
 Q. State whether, about that time, the militia, which had been organized in the 
 State, was not disbanded. — A. It was disbanded under the proclamation of Governor 
 Baxter. 
 
 Q. The old militia was disbanded and this new one mustered in ? — A. I do not know 
 whether these men were ever mustered in or not. They were there with guns, and 
 they took possession of the two cannon in the state-house yard, which belonged to 
 myself and Senator Clayton, and refused to give them up to us. 
 
 Q. Was^ the state-house surrounded with armed men after that ? — A. There were 
 armed men there until some time after the decision iu the quo-warranto case. 
 
 Q. What conversation did you have with Baxter, or what do you know iu reference 
 to what those armed men were there for, in connection with the quo-warranto proceed- 
 ing? — A. Shortly after Governor Baxter had made his Fourth of July speech in Lew- 
 isbiirgh, in which he is reported as having said that no court should decide in his case, 
 I had a conversation with him, in which he told me that the court had nothing to do 
 with the matter whether he was elected or not, and that he did not propose to pay any 
 attention to the court, aud he asked me whether, if the court issued a writ, I would 
 serve it. I said, if the court should issue any writ, I should certainly serve it. 
 
 Q. That was before the opinion was filed in the clerk's office? — A. Yes; it was 
 shortly after the Lewisburgh speech 
 
 Q. What time was this new militia called into service ? — A. If I recollect rightly it 
 was in June, 1873. 
 
 Q. What time of the day or night? — A. It was about 12 o'clock at night when I 
 heard of it first. 
 
 Q. During the day the men were not there? — A. No, sir. I left the office about 4 
 o'clock, and I was out riding in the evening, and I did not see any militia around. 
 The first I heard of it was about 12 o'clock at night, and the next morning I found 
 cartridges around the windows of my office. Then he had them up-stairs after that 
 in the day-time. Baxter himself said that I should not come up there to serve any 
 writ, (that was before the decision,) and Brigadier-General Shaver told me that if I 
 attempted to do so they would kill me on the stairs. 
 
 Q. State what you know about the expected resistance to any action of the court, 
 and what you did upon it. — A. Mr. Baxter himself told me that the court should not 
 take jurisdiction of that matter; that the court had nothing to do with it, and he 
 asked me plainly the question whether I would serve any writ that the court should 
 issue to me. That was before the case was heard. The day that the case was heard 
 the court-room was pretty well crowded with men, and Brigadier-General Shaver was 
 there (as he told me himself) with a proclamation of martial law in his pocket, aud he 
 said that, if the court had issued ;i writ to oust Baxter, they would have had this 
 county under martial law, and would have hanged Judge McClure and myself. I 
 simply remarked that I would be there at the hanging. 
 
 Q. Did you inform Judge McClure or any other member of the court of that? — A. I 
 heard of it through another before Shaver talked with me. I heard of it from a friend, 
 who was near the throne, and 1 went and told Judge McClure what he might expect. 
 I told him that I thought I was capable of keeping order in the court, and that if there 
 was any disturbance all I wanted was for him to tell me to keep order in the court. 
 
 '.,». Was Genera] Shaver in court at the time the decision was announced ? — A. I think 
 he was. I think the judges got off the bench .and counseled by themselves apart. I 
 do not know whether Shaver remained there or not. 
 
 Q. Were armed soldiers in the state-house yard at the time of that hearing — men of 
 the new militia '! — A. Yes ; I do not know that they were militiamen ; they were armed 
 mi n. It was a new crowd that Baxter had surrounded himself with. 
 
 *,>. It was this democratic militia which was there at that time? — A. Yes; there was 
 not a republican in the crowd that I recollect, and 1 knew nearly all of them. 
 
 There is a vast amount of testimony on that point, but I will not 
 trouble the committee with reading any more of it. We now approach 
 
21 
 
 the trial of that quo warranto under these peculiar circumstances. As 
 I thiuk I shall show, the courts of coiumou law have jurisdiction over 
 the subject-matter of elections, of offices, and of franchises secured by 
 election. I will show that that jurisdiction has existed for years in En- 
 gland, and in every State in this Union. It exists in- Arkansas, and 
 has been exercised there ever since the State was organized. If that 
 jurisdiction was excluded, it was excluded by the provisions of section 
 19, article 6, of the constitution of 1808, which provides that the legis- 
 lature shall determine the question of contested elections. If the juris- 
 diction was excluded by that section, it was excluded by implication, 
 by a construction of that section of the constitution. No court had 
 given it a construction. No court had, up to that time, passed upon it. 
 It was an open question, about which it might be said that lawyers 
 might differ, but about which, it seems to me, that lawyers who would 
 examine the subject, would say that at least the probabilities were in 
 favor of the jurisdiction remaining still in the judicial department of the 
 government. It is the province of the courts to construe the constitu- 
 tion and laws of a State ; and litigants are bound to submit to that con- 
 struction. If that construction, by a court from which an appeal can 
 be taken, is not satisfactory, the party may prosecute his appeal, and 
 have the question decided by a higher court. Mr. Baxter, a litigant in 
 this matter, instead of pursuing that remedy, without which we can 
 have no government; without which the judicial tribunals of the coun- 
 try would be prostituted, and their decisions subjected to the caprice 
 and whim of every mob, and of every disorderly assembly, arrogated to 
 himself the right to decide that question, and undertook to enforce his 
 decision by the arbitrary use of military power. That is the attitude in 
 which we come to that case. He was going to decide it. Instead of 
 submitting to the courts a controversy in which Mr. Brooks claimed a 
 legal franchise which was of value, the party who was seeking to de- 
 prive him of that franchise proposed to decide the question for himself, 
 and that the rest of the world should obey his decision. He demurred 
 to the jurisdiction of every other tribunal. To be sure he was willing 
 to submit to a court, if the court would certainly decide it in his favor ; 
 but if the court were to decide it against him, he wouid resist the decis- 
 ion. He sought to establish, for the first time in America, the doctrine 
 that a litigant, a party to a suit, is higher than a tribunal in which the 
 suit is pending. He was willing to submit the question to no judgment 
 except to the judgment of Elisha Baxter, rendered in his own cause, and 
 executed by his White League militia. That is the atmosphere, and these 
 are the surroundings, with which we approach what happened in the 
 trial of that case. The trial and the subsequent proceedings are more 
 singular, and perhaps more in violation of our ideas of legal and judi- 
 cial propriety, than even Baxter's notions. I read from Judge Gregg's 
 testimony, page 185 : 
 
 Q. Did you write the opinion of the majority of the court? — A. Yes, sir. 
 Q. Did you bring that opinion to the adjourned term, or did you send it here before 
 the adjourned term? — A. I sent it by mail. 
 
 Q. To whom did you send it ? — A. I think to Judge Searle or Judge Stephenson. 
 
 The testimony shows that when the oral announcement of the decis- 
 ion was made, it was agreed that the judges would meet at the ad- 
 journed term, and would then have the written opinion entered. 
 
 Q. What induced you to send it at an earlier period than was first contemplated? — 
 A. I was induced to do so by various letters which I received from parties here indi- 
 cating that there was likely to be a misconstruction of the ruling of the court, and call- 
 ing my attention to it, and urging me to file my views of the law of the case in order to 
 prevent some misconstruction, perhaps in the lower con; ts ; some of the judges so wrote 
 to me, and some other individuals. 
 
22 
 
 Q. Did Mr. Baxter's attorneys write to you on the subject? — A. No, sir; I do not 
 think they did. 
 
 Q. Did Judge Caldwell write to yon? — A. Yes, sir ; aud Mr. Wilsh ire wrote to me. 
 I think that perhaps the auditor of state wrote to me, and I think I had other letters. 
 Judge Stephenson and Judge Searle both wrote to me, I think. They were my asso- 
 ciates on the bench. 
 
 Q. Was not the case of Brooks against Baxter commenced in the circuit court after 
 that decision was rendered ? — A. I do not know when it was commenced. 
 
 Q. Did the letters to you insist that you should hasten the opinion with a view of 
 cutting oft" the jurisdiction of the circuit court ? — A. I do not think that that was stated 
 in any letter. I think that the substance of the letters was that parties seemed not to 
 understand the point decided by the supreme court, and that they were misconstruing 
 the decision, and that it was of importance to the public that we should file the 
 written opinion. That was my recollection. I do not think it was stated that it was 
 desired to aft'ect the decision of other judges, or anything to that effect. 
 
 Q. Look at that opinion (aside from the paragraph on the fly-leaf) and see whether 
 it is the opinion which you prepared and sent to Judges Searle and Stephenson. — A. I 
 think so. This is my handwriting. 
 
 Q. Did you sign it previous to sending it ? — A. Yes. 
 
 Q. This paragraph on the fly-leaf was not to it when you sent it? — A. No, sir; it 
 was not to it. 
 
 Q. It is in your handwriting ? — A. Yes, sir. 
 
 Q. How did you come to attach it ?— A. I attached that paragraph at the request of 
 one or both of my brother judges whom I have mentioned. 
 
 Q. Was it not sent up to you in those exact words for you to copy it in your own 
 handwriting, and to attach it to the opinion? — A. It was very nearly in the same 
 words. 1 forwarded this opinion as my view, with a request that the other judges 
 would file their opinions also, and when we met at the adjourned term the records 
 would still be under our control, and we could withdraw these temporary opinions, and 
 prepare a proper opinion for record. I think I requested them to file their opinions, and 
 I sent this as mine. Then I received a communication from one or both of those gen- 
 tlemen, (Judge Searle and Judge Stephenson,) requesting that I would insert this ad- 
 ditional paragraph immediately preceding the last clause of my opinion, and urging 
 that it would be more satisfactory to them, or something to that effect. 
 
 Q. Did they send the opinion back to you? — A. No, sir; they sent this paper, re- 
 questing that it should be copied in my handwriting and inserted before the last clause 
 in my opinion. 
 
 Q. And you sent that paper back to whichever one of the two judges you wrote to ? — 
 A. Yes, sir. 
 
 Q. Did you sign the opiuiou after that paper was attached to it? — A. No, sir ; I did 
 not see that opinion any more. 
 
 Q. Has the court met since then ? — A. O, yes; we held court after that. 
 
 Q. Did you meet at the adjourned court? — A. Yes ; that is my recollection. 
 
 Q. And the regular term was held afterward ? — A. Yes, sir. 
 
 Q. In whose handwriting was the paper which was sent to you? — A. It was in the 
 handwriting of one of the judges. I am not distinct in my memory as to which, but 
 I think it wa»s Judge Searle. They were both communicating with me. The paper, 
 I think, was in the handwriting of Judge Searle. 
 
 Q. At the time of the hearing of the quo warranto, was there not a positive threat of 
 martial law being declared in case the supreme court took jurisdiction in the matter ? — 
 A. It is a little difficult to answer that question directly. I heard something said about 
 martial Law, but I never heard of it from any source which caused it to attract my 
 attention at all as amounting to anything of importance. I heard it mentioned, per- 
 haps on the street, but never in a way which made me consider it a serious proposal 
 at all. 
 
 Q. At the time that that decision was announced, was not Mr. Baxter's adjutant-gen- 
 eral in the court-room ? — A. I declare I do not know. 
 
 Q. V^ere you not aware of the fact, or notified of the fact, or did you not believe the 
 fact to exist, that he was there with a declaration of martial law, which was to be 
 announced in case the court took jurisdiction ? — A. If you ask my opinion, I say that 
 I do not believe it. I heard something about it. I did not apprehend that there was 
 any danger of martial law, or that it was likely to be declared. 
 
 Q. Were not armed men in the State-house yard, and in the other end of the State- 
 house at the time — State militia ? — A. I do not recollect distinctly. 
 
 Q. What is your recollection about it ?— A. I do not recollect to have seen any armed 
 men there. 
 
 Q. Was there not a number of armed men, at the time that you held court, in the 
 State-house or in the State-house grounds ? — A. I do not recollect. If they were there 
 I do not recollect. I do not recollect to have seen any armed men about the premises 
 during the time we were holding court. 
 
23 
 
 Q. Did you concur in that memorandum-amendment made to your opinion ?— A. The 
 objection which I had to adding it was that it seemed to me to savor more of dictum 
 than of legal ruling. On that ground I had some objection to it. I did not think it 
 was announcing any incorrect principles of law, but I thought that it was rather dictum, 
 as tlie matter then stood before the court; but as my brother judges insisted upon it, 
 and as 1 had not an opportunity of communicating with them in person, I consented 
 to insert that paragraph. 
 
 Q. The question before the court was a motion for a petition for a 3 «o warranto!— 
 A. Yes. 
 
 Q. And this dictum, or whatever it was termed, which was added to this opinion, is a 
 decision that no person litis jurisdiction of the controversy f — A. It is an assertion to 
 that effect. 
 
 Q. You thought that on the mere question of a motion whether a man should have 
 a certain writ, the decision of what other courts might do, or might not do, was 
 rather dictum ? — A. So far as that motion was concerned, although it was only a mo- 
 tiou to file, yet it was put upon the same grounds as if the merits of the question were 
 under consideration. We heard two days' discussion of the question, which extended 
 to the merits as well as to the mere application to file. That, of course, exteuded to 
 the jurisdiction of the court. If the court bad jurisdiction at all it would have re- 
 ceived the petition and considered it; but if the court was without jurisdiction, it was 
 proper to cut off the petition, and we considered that we were deciding really the 
 case of jurisdiction on that application. 
 
 Now on that last testimony Judge Gregg is contradicted by four or 
 five witnesses who testilied that the announcement was that the judges 
 would not decide the question of jurisdiction, but would simply decide 
 the question before them on the motion to hie a petition for a quo war- 
 ranto. 
 
 Mr. Baxter. Who put Judge Gregg on the stand ? 
 
 Mr. Rice. AVe did. 
 
 Mr. Baxter. And now I understand you to say that he is contradicted 
 by four or five other wituesses ? 
 ' Mr. Rice. Yes ; I say so. 
 
 Mr. Baxter. Then they contradict your own witness ? 
 
 Mr. Eice. Yes. We had to use some materials in which we did not 
 believe very much ourselves ; but this testimony was extracted from an 
 unwilling witness, and under the rule of law it is very good testimony, 
 as against you. I continue to read from Judge Gregg's testimony : 
 
 Q. State whether, since that opinion was filed, you have not stated in the presence 
 of most or all of the judges, that if you had been here before the filing of that opinion 
 you would not have allowed it to be filed with that addition to it ?— A. I do not re- 
 member the conversation. I have expressed opinions on it ; and I think I have stated 
 to some of the judges that if I had been here I should have insisted not to have put it 
 in. The idea was that if we had had an opportunity for personal consultation I should 
 have objected to putting it in, because I regarded it as dictum. 
 
 Q. I ask you if you do not know the fact, from your correspondence and other 
 sources, that that paragraph was written out for the purpose of influencing the circuit 
 court, and with the understanding that if it was added to the opinion the circuit court 
 would perhaps he governed by it ?— A. I cannot assert that from my knowledge, except 
 as it might be inferred from circumstances. No one spoke anything to that effect, while 
 I might have my owu private opinion as to what the other judges who wrote that 
 paragraph expected it to effect. 
 
 Q. I ask yon if Judge Caldwell did not substantially give you to understand that the 
 object of having that opinion filed was for the purpose of embarrassing the circuit 
 court ?— A. I think there were no words to that effect. My remembrance of the sub- 
 stance of Judge Caldwell's letter (I can produce it if need be) is that he urged me to 
 send a written opinion, as he regarded it as a matter of great public interest that our 
 written opinion should be filed, and that it should not be delayed any longer. 
 
 Q. Why did you understand it to be a case of such public interest if the question 
 was disposed of ?— A. The reason I gave awhile ago was that the court was miscon- 
 struing the ruling which we had made. 
 
 Q. Do you mean the court, or Brooks's attorneys ?— A. My understanding was that 
 the judges feared that there would be a misconstruction of our opinion. 
 
 Q. Was it as mild as misconstruction ; or was it the idea that they wanted to close 
 in the Brooks fight a little closer ?— A. I think that their letters were pretty well 
 guarded. It was put on the ground that it was a matter of public concern, and tha-^ 
 
24 
 
 there was likely to be a misconstruction of the ruling of the court, and hence they 
 wanted the written opinion riled. 
 
 Q. I was merely trying to get at their idea. — A. I do not know that the idea in those 
 letters was any different from what I have stated. 
 
 Q. Was there any interest whatever in the filing of that opinion, except as far as it 
 would affect tue suits which were pending in the circuit court ? — A. I think that my 
 impression at the time was, and yet is, that the object of having the opinion filed was 
 to use it in the lower courts. 
 
 Q. Theu the public interest of Judge Caldwell and those other gentlemen was to get 
 that opinion fiied in order to affect the decision of other courts?— A. I think that the 
 desire expressed was to have that opinion filed so that it could be used in the other 
 courts for the purpose of conforming their ruling to the ruling of the supreme court. 
 
 D. Did you expect that the other courts would regard that additional paragraph as 
 dictum ?— A. I did not care anything about that. I did not think that that cut any fig- 
 ure in the case. I would have preferred not to have put it in on that ground. 
 
 Q. Do you regard that now as law, or as dictum .'—A. I regard it in the main as dic- 
 tum. That was my opinion at the time, and is yet. I think, however, that the sub- 
 stance of the opinion conveys the same meaning as there is in that paragraph ; but I 
 looked on that as dictum. 
 
 There is the statement of Judge Gregg, one of the judges who tried 
 that case. There is the high disinterested judicial attitude which he 
 occupies in this case. I will now read from the testimony of Judge 
 Stephenson, page 2G7 : 
 
 Q. Was it understood that you were to meet and agree upon the opinion when you 
 got together at the next meeting.' — A. Yes ; we were to meet on the 20th of November, 
 and then submit our views. 
 
 Q. You adjourned with that understanding ? — A. Yes. 
 
 Q. Was there ever any consultation afterward in the enteriug-up of the opinion as 
 was then contemplated ? — A. The proceedings afterward were somewhat irregular. 
 Shortly after the adjournment of the court, I went to Michigan and Illinois to spend 
 the summer. Judge Searle, who concurred in the opinion, went to Illiuois, I think, 
 and Judge Gregg went home to the northwestern part of the State. Perhaps a week 
 or ten days afterward I received a letter from Governor Baxter 
 
 He, a judge, receiYed a letter from a party litigant — 
 
 containing a general statement of the condition of affairs here, and expressing a wish 
 that I would return to the State. About two weeks after that I received a letter from 
 Mr. Compton, one of Governor Baxter's counsel, who wrote, as he said, on behalf of the 
 governor, urging me to return to the State immediately, as there were some matters 
 which were considered of great importance to the public interest, and which demanded 
 that I be here. I wrote in reply to Mr. Compton that I would go to Normal, 111., 
 and make a short visit to my friends, and that my post-office address would be at 
 Normal. When I arrived at Normal I received a telegram from Mr. Wilshire, who 
 was also counsel for Governor Baxter, urging me to return immediately. I staid 
 there till the next day, and then started home. On the way — I think at Atlanta, or 
 some station on the road — I met Judge Searle, who told me that he had also received 
 a similar request by telegraph to come back. On our arrival here I was informed by 
 several gentlemen, who were my friends, and the friends of Governor Baxter, that a 
 suit was pending in the circuit court (I may have known that before I started) of the 
 same nature as the one which had been decided in the supreme court, and that it was 
 apprehended, on the part of Governor Baxter and his friends, that unless the opinion 
 of the supreme court was reduced to writing and put on file, Judge Whytock, of the 
 circuit court, on the plea that he did not know what the opinion of the supreme court 
 was, would take jurisdiction of the case, and render some kind of judgment in it ; and 
 it was considered of great importance that the opinion of the supreme court should be 
 reduced I > writing and placed on file, so as to be authoritative on Judge Whytock's 
 court. I understood that Judge Gregg bad been also written to to come to the capital. 
 The difficulty then was to get the concurring members of the court together for consul- 
 tation and to reduce the opinion to writing. After consultation, it was agreed that 
 we should correspond witli Judge Gregg, and, if he were not able to come, that we 
 would by mail interchange our views, and arrive at a conclusion. 
 
 Q. When did you first see this opinion? — A. I wrote to Judge Gregg, and he sub- 
 mitted his views. He draughted that opinion and sent it down here. 
 
 Q. When was that ?— A. That was in the early part of September, I think. Perhaps 
 the opinion, as perfected, was not received until the latter part of September. It took 
 some time in correspondence. 
 
 Q. Had lie signed the opinion ? — A. Yes. 
 
 Q. Go on and state what you know about the slip of paper which is annexed to it ; 
 where was it written, and by whom ?— A. I was very intimate with Judge Caldwell, 
 
25 . 
 
 judge of the United States district conrt, and when I got Judge Gregg's opinion I took 
 it up to Judge Caldwell and showed it to him, or rather read it to him. He made some 
 suggestions about it. The particular objection which he had to the opinion was that 
 nowhere in it was there an epitomized statement of the facts in short form, so that the 
 public and everybody interested would readily grasp it; and lie suggested a change, or 
 that there be interpolated at the end of the opinion a short summarized statement of 
 the points contained in it. Judge Caldwell met Judge Searle and myself in the library 
 of the supreme court the next morning, perhaps, after I had the consultation with 
 him. I sat down and embodied what I conceived to be Judge Caldwell's ideas, telling 
 him, however, that I thought they were all in the opinion already 7 . He admitted that 
 they were, but said that they were not in such a concise form as that they could be 
 understood generally by r the public. He was not exactly satisfied with what I had 
 written, and he wrote himself a statement of what he desired to go to the public, I sup- 
 pose, and in that Judge Searle and myself agreed. It was substantially what the opin- 
 ion was. I sat down and copied the statement of Judge Caldwell in my own hand- 
 writing, and wrote to Judge Gregg, telling him what the object and desire of his friends 
 here in reference to it was, (perhaps I mentioned Judge Caldwell's name ;) and I asked 
 him, if it met his views, to copy it in his own handwriting and send it to me with 
 authority to add it to his opinion. I sent that statement to Judge Gregg, who copied 
 it in his own handwriting, and I appended it to the opinion. That is the history of 
 the fly-leaf. 
 
 Q. Had you signed the opiniou before that was appended ? — A. No, sir. 
 
 Q. Had Judge Searle? — A. I think he had. I think he signed it with the understand- 
 ing that that should go in. I know that he was present when it was seut to Judge 
 Gregg, and we agreed that if he should concur and send it down it would be appended 
 to the opinion. 
 
 Q. What correspondence had you with Judge Gregg in regard to the extraordinary 
 mode of getting that opinion into the clerk's office ? — A. None at all. 
 
 Q. What correspondence had you on the general subject ? — A. This agreement was 
 entered into by Judge Gregg, Judge Searle, and myself at the time of the adjournment : 
 that the opinion was not to be filed until the November meeting; and, as a reason why 
 that agreement should be departed from, I stated to him that it was considered absolutely 
 necessary by Governor Baxter and his friends that the opinion be placed ou tile, and I 
 gave him the reasons for it. Governor Baxter had frequently said that he considered 
 the question settled, first by the legislature and second by the opiuion of the supreme 
 court, and that if any other court should attempt to interfere with his office he would 
 consider it revolutionary, as it would involve the State in turmoil, and he would con- 
 sider it to be his duty to protect himself from the judgment of that circuit court by the 
 means which he had in his hands at the time. I think that Mr. Wilshire and myself 
 and several others frequently talked over that matter. I know that I did with Gov- 
 ernor Baxter, and I think, also, with Mr. Wilshire as to Governor Baxter's being justi- 
 fied in using the means at his command to prevent any interference with his office by 
 the circuit court. 
 
 Q. What means?— A.. The militia. The object was to avoid that catastrophe, and to 
 avoid the necessity of drawing out the militia to preveut the execution of such a judg- 
 ment. I know that such a thing was apprehended by those who were interested in 
 preserving the peace and quiet of the community ; and I think that all the gentlemen 
 who were operating with me at that time had the same desire to quiet the affairs of 
 the State. We concluded that it was better to have that opiniou go on file at that 
 time. 
 
 Q. State whether Judge Caldwell was an active partisan of Mr. Baxter.— A. He was 
 certainly very friendly to Mr. Baxter, as I myself was at that time. 
 
 Q. Was he not rather an active partisan ?— A. I do not wish to be misunderstood as 
 to what I might say in that matter, but I will say that he was a very warm friend to 
 Mr. Baxter, and I regarded him as one of Baxter's chief advisers in the affairs of the 
 State. 
 
 Q. Was the wording of the opinion, the so drawing it as to attempt to exclude the 
 jurisdiction of the circuit court, influenced in any way by the desire to preveut mar- 
 tial law ?— A. There is no question but that the intention of framing the decision was 
 that the circuit court could not take jurisdiction. 
 
 Q. It was done on purpose to effect that ?— A. Yes, sir; it was, most emphatically. 
 
 Q. Was that idea put into the opiniou in order to prevent military disturbance or to 
 preserve quiet?— A. Our idea at that time was that if the opinion went on file it 
 would preserve the peace of the State, aud the opiniou was drawn with reference to 
 the then pending action in the circuit court. The object of filing it at that time was 
 to prevent any action on the part of the circuit court. 
 
 Q. Did you consider that you bad before you in that case any question as to the juris- 
 diction of the circuit court ? — A. We no doubt intended at that time to confine the de- 
 cision strictly to the case before us. 
 
26 
 
 Q. What made you depart from that intention ? — A. The reason that actuated me 
 ■was to preserve the peace and to avert any impending danger in the State. 
 
 Q. What do you know as to Judge Gregg being actuated by the same feeling ? — A. 
 I have a letter from Judge Gregg, but I dislike to produce it without first having a con- 
 versation with him, as the matter is oue of private correspondence between Judge 
 Gregg and myself. 
 
 Q. It was on this public subject ? — A. Yes ; I wrote to him and explained the reason 
 why it was desired to have the opinion and the appendix both. Several letters passed 
 between us. Judge Gregg said that while he desired so to restrict himself as not to 
 strike down any other case that might be pending, still he agreed with us that if the 
 fly-leaf would bridge over the emergency he was willing to have it go on file. 
 
 Judge Searle, in speaking of this decision, testifies as follows, page 
 278: 
 
 Q. You heard Judge Bennett's testimony in regard to the kidnapping, &c. ? — A. Yes. 
 
 Q. Do you concur generally in that testimony '! — A. Yes: with the exception of two 
 or three things that are perhaps immaterial. 
 
 Q. Do you concur in his statement in reference to the disposition of the quo-ioarranto 
 case ? — A. Xot exactly. 
 
 Q. What was the question there submitted to the court? — A. It was as to whether 
 the petition for quo warranto should be filed or not. 
 
 Q. What was the question that was decided ? — A. The argument extended back to 
 the jurisdiction of the court, and the opinion of the court extended back still farther. 
 
 Q. I am asking for the announcement that was made. — A. It was that that was the 
 only question which should be considered. 
 
 Q. You meau as to whether the petition should be filed ? — A. Yes. 
 
 Q. What was the agreement in reference to the opinion — as to whether it was to con- 
 tain anything beyond that announcement — I mean as to what the opinion which was 
 to be written up afterward should contain ? — A. I think that the understanding at 
 that time was that the opinion was to contain uothing more than that question — that 
 is, that it should relate to nothing more than to that question. I do not know that 
 there was any special understanding in regard to it. 
 
 Q. When was the opinion to be tiled ? — A. It was to be filed when we met again, on 
 the 20th of November following. 
 
 Q. Were you to have had a consultation when you met ? — A. Yes. 
 
 Q. When you parted it was with the understanding that you would meet in Novem- 
 ber and have a consultation upon this opinion and file it ? — A. Yes. 
 
 Q. Was any such consultation ever had 1 — A. Those of us who agreed in Judge 
 Gregg's oral opinion, just before the court adjourned on this case, had some talk iu re- 
 gard to the opinion which should be written up, and the understanding seemed to be 
 that Judge Gregg should write up the opinion specially. It was also understood that 
 the rest of us were to write our views, and then when we met again in November were 
 to compare notes, so to speak. 
 
 Q. When you signed the opiuion was the fly-leaf attached to it ? — A. No, sir. 
 
 Q. After you went away who wrote to you to come back here ? — A. When the court 
 adjourned I was quite unwell, and I went North to rest. I received a telegram while 
 visiting my father's, near Rock Island, to hasten immediately to Atlanta, Illiuois ; 
 where some of my folks were. This telegram was simply on another telegram which 
 they had received from Mr. Wilshire, requiring me to come here immediately. I re- 
 mained there four or five days, and received another telegram from Mr. Wilshire, re- 
 questing me to come immediately to Little Rock. I immediately started for here, and 
 on the train I met Judge Stephenson, who stated that he had received a similar tele- 
 gram. 
 
 Q. That is all the communication which you had from here in reference to your 
 coming back ? — A. I believe That is all, except a letter from Judge < tregg, saying that 
 he did not desire to come ; that he had been requested to do so, and that he would write 
 his views and send them anywhere that I should be. Shortly afrer I arrived here he 
 sent his opinion to me, or to Judge Stephenson and me jointly, (I do not know which.) 
 I examined the opinion and signed it, and then handed it to Judge Stephenson. The 
 next day, about 9 o'clock in the morning, I was in the supreme-courtroom, when Judge 
 Stephenson and Judge Caldwell came into the room with this opinion. They consulted 
 in regard to the matter and wrote something, and Judge Caldwell and Judge Stephen- 
 son appeared to be agreed. Then they spoke to me and asked me to hear what they 
 had written. They read it to me and asked me what I thought of it. I told them that 
 I regarded it as dictum; that 1 thought it unnecessary; that the rest of the opinion 
 was substantially the same as that, and that there was enough dictum iu the opinion 
 without that. But they talked over the necessity of making the thing strong and con- 
 densing it, and of giving a kind of summary of the opinion, aad I finally agreed to it. 
 The writing was copied by Judge Stephenson or myself, and was sent by myself to 
 
27 
 
 Judge Gregg. I inclosed it iu a letter, wliirh I had already written on other subjects, 
 
 to Judge* Gregg. I put this thing as copied into the letter, and then I made an addi- 
 tional .statement in regard to it. 
 
 Q. What was the motive that induced you to agree to that dictum? — A. Policy, to 
 some extent. 
 
 Q. Do you agree substantially with Judge Gregg in regard to the reason for putting 
 in that dictum and for- tiling the opinion as that time .' — A. Yes, sir; substantially. 
 
 Judge Bennett testifies as follows, page 257 : 
 
 By Mr. Kice : 
 
 Q. When was the opinion to be prepared in writing ? — A. It was to be prepared at 
 the next meeting of the court. 
 
 Q. When was that? — A. I think that that was in tire June term. I think we ad- 
 journed to a set day. Our regular term was on the first Monday of December, and I 
 think it was on the Monday or two before that first Monday. 
 
 Q. Was it agreed as to who was to write the opinion ? — A. Yes ; it was generally 
 understood that Judge Gregg, by his being appointed and delegated to announce tin- 
 oral opinion, would prepare the written opinion, and I .supposed it would be brought 
 in at our next meeting for general consultation. 
 
 Q. Was the opinion presented at an earlier day ? — A. I do not know that it was ever 
 presented in court. I never saw it presented in consultation at all. 
 
 Q. Did you ever sign the opinion ? — A. No, sir. 
 
 Q. Did you ever refuse to sign it ? — A. No, sir ; it never was presented to me for my 
 signature. 
 
 Q. Was it ever presented in court for action ? — A. Never, that I know of. 
 
 Q. You have been on the bench at every meeting of the court since ? — A. Yes. 
 
 Q. It was simply filed iu the clerk's office ? — A. I do not know whether it was filed 
 or not ; I do not know anything' about it. I think I saw the manuscript of it ouce 
 when a question of controversy as to what it contained brought it out; but as to 
 whether it was tiled in the clerk's office or not I do not know. The first I knew of its 
 being iu existence was when it was published in the papers. 
 
 By Mr. Sayler : 
 Q. How many judges of the supreme court are there ? — A. Five. 
 
 By Mr. Kice : 
 
 Q. The appointed consultation over the opinion drawn by Judge Gregg was never 
 had ? — A. No, sir. It was, as I consider, a general assent. I did not suppose that any 
 announcement would be sent forth as to the opinion of the court without a fair and 
 general consultation. Such a thing had never been done before, and it was my under- 
 standing that the written opinion was to be prepared and ready for submission to the 
 whole court, or to the majority that had coincided with the oral opinion, at the ad- 
 journed term of the court, and not before. 
 
 Q. Did you concur iu that opinion, and would you have signed it if it had been sub- 
 mitted to you ? — A. No, sir. 
 
 I will read a letter from Judge Gregg to the other two judges wliicb. 
 was put in evidence, page 320 : 
 
 Fayettevii.i.e, Ark., September 18, 1873. 
 
 Dear Judges : Your letter did not reach me soon as it ought to have come. 
 
 I inclose what you suggest. I aimed to be sufficiently explicit before on that sub- 
 ject, and, as you intimate, I think none but the most prejudiced could misconstrue our 
 intention. But perhaps it is better as you suggest. I care nothing about the form of 
 words conveying the idea that this question belongs to another department and not 
 the courts, only I did not want to use undignified or unbecoming language, aud such 
 as would indicate that we were attempting especially to strike down a case not yet 
 before us ; but you are very right, in matters of so much importance, to require that 
 the language be so plain that none can mistake. 
 
 You are guilty of gross flattery in your kind note. I was not at all satisfied with 
 what I had written when I mailed it to you. It is certainly not worthy of the occa- 
 sion, but I intended to revise and rewrite it before we allowed it to go to press. I 
 then thought, and still hope, it will answer a temporary emergency and save me a 
 hard, expensive trip, and at a time when my health is not very good, Ac. 
 Truly, yours, 
 
 L. GREGG. 
 
 Hons. E. J. Searle and M. L. Stephenson'. 
 
 Judge Gregg says in this letter that Judge Stephenson is guilty of 
 gross flattery. I am glad that he was, for if any man could Hatter a 
 
28 
 
 judge who was guilty of such conduct, he was the mau to engage in 
 that enterprise. 
 Now, here is a letter from Baxter to one of the judges : 
 
 Executive Office, 
 Little Rock, Ark., July 16, 1873. 
 My Deak Judge: I Lad a long interview last evening with our mutual friend, Judge 
 Caldwell, in whose judgment I have unbounded confidence ; and, among other things, 
 he suggested that the opinion in the quo-warranto case ought to be prepared, signed, 
 and filed before the meeting of the Pulaski circuit court in the fall. I hope you will 
 give (as I know you will) due attention to this matter ; and if convenient for you to 
 do so, I hope you will at once call the attention of Judge Gregg to this matter. 
 
 The enemy are as bitter as ever, and the last dodge is an open declaration by McClure 
 and the reform central committee in favor of a constitutional convention. I shall be 
 pleased to hear from you often. 
 Respectfully, yours, 
 
 ELISHA BAXTER. 
 
 Now, this is the opinion thus obtained that has been talked of all 
 over this land as settling the question of jurisdiction of the judicial tri- 
 bunals of Arkansas — a decision that was rendered in a military camp, 
 when a party to the suit, and who was to be affected by it, was sur- 
 rounded by armed men, with a proclamation of martial law in his pocket, 
 bullying that court into acquiescence or obedience to his dictation, 
 threatening the court with destruction almost if it did not decide as he 
 dictated. Under those circumstances, the court rendered a decision 
 which cannot be sustained upon any principle of law ; and that is, that, if 
 Mr. Brooks saw fit not to 'contest Mr. Baxter's election, his failure to do 
 so precluded the sovereign people of the State from reclaiming to them- 
 selves a franchise which was usurped. 
 
 A decision which is a disgrace to any court upon earth, was there 
 rendered, and the only excuse for it is that it was compelled by 
 force, and the court yielded through fear. Two of the judges who con- 
 curred in this decision were gentlemen who had been counted in in the 
 same manner as Baxter had been, so that only one of the regularly- 
 elected judges decided the case. It has been said — and even the 
 Attorney-General of the United States, who did not know of those sur- 
 roundings, has said — that that was a well-cousidered opinion. Yes, it 
 was the best-considered opiuion that I ever heard of. It was considered 
 by the judges, each of them at home, or traveling over the country; 
 it was considered by Baxter's attorneys ; it was considered by Baxter 
 himself ; and then it received a very considerable amount of considera- 
 tion from that intermeddling district judge, Henry Clay Caldwell. It 
 was a well-considered opiuion. It was a. disgrace to any country. And 
 when they talk about bad government and about bad things that have 
 occurred in Arkansas, I say that this eclipses all of them. The case is 
 on trial in the supreme court, and a majority of the judges are counsel- 
 ing, and corresponding, and intriguing with one of the parties and his 
 attorneys and friends — counseling, not as to how they shall arrive at an 
 honest decision of the case, but as to how they shall so word their decision 
 as to cut off the jurisdiction of any other tribunal and deprive Mr. Brooks 
 of his right to apply for a remedy in a court of justice. That is a rare 
 specimen of the decisions of the courts which we used to read about in 
 youth, and which were spoken of as some of the great bulwarks of lib- 
 erty, and of the rights of the people. Here is a court supposed to be 
 impartial, or which ought to have been impartial, trying this case. The 
 judges never held a consultation upon the opinion, as the testimony 
 shows. Judge Gregg wrote it out, and then they handed it around and 
 
29 
 
 signed it just as they would a circular-letter. Two of the judges had 
 beeu counted in like Baxter, so that there was only one of them who 
 can really be said to have fairly decided the case — the chief-justice dis- 
 senting, and Judge Bennett took no action whatever in it. But there 
 are these three judges with Baxter writing to them, and Baxter's law- 
 yers writing to them, and Judge Caldwell and Baxter's partisan friends 
 writing to them, and caucusing and corresponding together, the whole 
 resulting in what this testimony shows to be a programme decision. 
 To say that that is a judgment which is to be taken as a construction of 
 the constitution of the State is simply preposterous. It is a sad com- 
 ment on the kind of good government which the gentlemen on the other 
 side say has dawned upon the people of Arkansas — a government where 
 one of the parties to a litigation runs the court and dictates what the 
 judges shall decide. Added to that was a United States district judge 
 holding a high and responsible position, whose duty it was to maintain 
 the integrity of the law, and who, instead of doing so, commenced in- 
 triguing with the judicial department of the State, commenced putting 
 up schemes that were to be ground through in the form of a judicial 
 decision, commenced corrupting the judiciary, and I may say that the 
 suspicious will always believe that when he started out on that mission he 
 was only doing unto others as he would that others should do unto him. 
 When a judge will engage in corrupting other tribunals there is ground 
 to suspect that the procuress is not more virtuous thau the procured. 
 Here is the result of their disgraceful labor. Here is this add u ion, 
 this appendix to the decision of the supreme court, (page 145.) Upon this 
 they base their claim that the judgment of the circuit court is a nullity. 
 It reads as follows: 
 
 Under this constitution the determination of the question as to whether a person 
 exercising the office of governor has been duly elected or not is vested exclusively in 
 the general assembly of the State, and neither this nor any other State court, has juris- 
 diction to try a suit in relation to such contest, be the mode or form what it may ; 
 whether at the suit of the attorney-general, or on the relation of a claimant through 
 him, or by an individual alone claiming a right to the office. Such issue should be 
 made before the general assembly. It is their duty to decide, and no other tribunal 
 can determine that question. 
 
 That is the fly-leaf written by Judge Caldwell. And to show that 
 they were acting very honestly and disinterestedly in the matter, he got 
 Judge Stephenson to copy it, and Judge Stephenson sent it up to Judge 
 Gregg and got him to copy it ; and then, as they could not incorporate 
 it into the opinion, they pinned it on to the opinion, and filed it; and 
 all those certified copies of the opinion which have come to Washington 
 have come with that appendix to it, as if it was part of the original 
 decision. There never was such a prostitution of justice developed in 
 any case where a party litigant, with his attorneys, friends, and adher- 
 ents, connived with the majority of the court, aud put up such a weak 
 subterfuge, worked up a scheme of this kind to thwartjustice, and cor- 
 ruptly cut off the jurisdiction of another court. 
 
 PROHIBITION CASE OF. BEERY VS. WHEELER IN SUPREME COURT. 
 
 About the time Brooks brought his suit in the circuit court against 
 Baxter, Berry brought an action in that; court against Wheeler to 
 recover the office of State auditor, which was an executive office under 
 the constitution, and stood the same in that respect as the office of gov- 
 ernor. To this suit Wheeler filed a demurrer to the jurisdiction of the 
 court, accompanied by an answer upon the merits. Soon alter the quo- 
 warranto case was decided, Judge Whytock overruled the demurrer, 
 
30 
 
 and decided that lie had jurisdiction of the case. It stood upon the issue 
 of fact raised by the answer, and Wheeler applied to the supreme court 
 for a writ of prohibition against Judge Whytock and Berry to prevent 
 further proceedings in the case. The writ was awarded by three judges, 
 the chief-justice and the two " comited-in " judges, the odds being 
 against the legally-installed judges ; Judge Gregg, the champion of the 
 opinion in the quo-warranto case, one of the gentlemen of the fly-leaf 
 notoriety in connection with that remarkable opinion, disregarding his 
 own dictum, reversed his decision (being a friend of Berry's) and held 
 in the prohibition case that the circuit court had jurisdiction. 
 
 I have never attached any importance to the supposed decision in this 
 case; but as it seems to be relied upon, I will say a few words upon it. 
 The awarding of a writ of prohibition is not a judgment nor an adjudi- 
 cation of the questions upon which the application for the writ is founded. 
 It is no more an adjudication than the granting of an injunction by a 
 court in term-time upon an application made for that purpose ; it is to 
 that extent a decision of that question ; but it is only a preliminary, 
 prima-facie decision, such as the court must make when it determines 
 to award the writ. The court may decide the same way in the final hear- 
 ing, or it may decide exactly the reverse, and is not in the least embar- 
 rassed by the fact of having awarded the writ. In England it was the 
 practice for the court that had been prohibited to suspend further action 
 in the case until the questions involved in the petition for the writ could 
 be adjudicated by the court that awarded it. And to present a case 
 upon which the court could make an adjudication and render a judgment, 
 the practice allowed the party suing out the w r rit to institute an action 
 against the opposing party, charging by fiction that he had disregarded 
 the writ. This allegation (being only a fiction) was not traversable; 
 and upon the issue thus presented between the parties to the original 
 suit the question was heard and determined; and that determination 
 amounted to an adjudication — it was a judgment. 
 
 Section 4, article 7, of the constitution confers upon the supreme 
 court jurisdiction to issue remedial writs and hear and I determine the 
 same, showing that the awarding of a writ of prohibition was not 
 regarded as an adjudication, but the determination upon the hearing is the 
 adjudication, and that authority is expressly given by the constitution. 
 
 in the case we are considering the writ was issued, but it was never 
 heard or determined; it still stands upon the docket as it stood when it 
 was issued; therefore, so far as any importance is attached to the prohi- 
 bition case, no decision that rises to the dignity of an authority has been 
 made in that case. 
 
 THE QUO-WARRANTO AND PROHIBITION CASE NOT AUTHORITY. 
 
 Judge Pratt once said in the court of errors in New York that the de- 
 cisions of the court were not law, they were only evidence of what the 
 law was, and the strength of their evidence depended upon the uuauitn- 
 ity of the court, the uniformity of the decisions, the soundness of the 
 reasoning, and the fair, deliberate, and impartial consideration that 
 was given to the question ; and that the absence of any of these greatly 
 weakened the force of the decision as an authority. Tested by this rule 
 the opinion in the quo-warranto case and the awarding of the writ of 
 prohibition are utterly valueless upon the question as to whether or not 
 the courts had jurisdiction of this case, and especially whether or not 
 the circuit court had jurisdiction of the case of Brooks against Baxter, 
 in which the judgment of ouster was rendered. 
 
31 
 
 That leaves the question without any authoritative adjudication, ex 
 cept the decision of Judge Whytock, rendered at the time of overruling 
 the demurrer in the case of Berry vs. Wheeler, in which he held that 
 the circuit court had jurisdiction. This opinion was published in the 
 daily papers and was well known to be the view of the circuit judge at 
 the time the case of Brooks against Baxter was submitted on demurrer. 
 
 THE QUESTION PROPERLY BELONGS TO THE COURTS. 
 
 The question of the result of an election to an elective office properly 
 belongs to the courts of the State. This was the opinion of the Attorney- 
 General, as shown by his telegram to Mr. Baxter, which will be found 
 in House Ex. Doc. No. 229, page 4, and reads as follows : 
 
 [Telegram.] 
 
 Department op Justice, 
 
 Washington, April 16, 1874. 
 Hon. Elisha Baxter, 
 
 Little Rock, Ark. : 
 I am instructed by the President to say in answer to your dispatch to him of yester- 
 day, asking lor the support of the General Government to sustain you in efforts to 
 maintain the rightful government in the State of Arkansas, that, in the first place, your 
 call is not made in conformity with the Constitution and laws of the United States, 
 and in the second place, as your controversy relates to your right to hold a State office, 
 its adjudication, unless a case is made under the so-called enforcement acts for Federal 
 jurisdiction, belongs to the State courts. 
 
 If the decision of which you complain is erroneous there appears to be no reason 
 why it may not be reviewed, and a correct decision obtained in the supreme court of 
 the State. 
 
 GEORGE H, WILLIAMS. 
 
 Attorney-General. 
 
 In Dillon on Municipal Corporations, vol. 1, page 263, section 141, 
 we find the following : 
 
 Common-law courts of general and original jurisdiction have the admitted power to 
 inquire into the regularity of elections, corporate and others, by quo warranto, on an 
 information in that nature, and in certain cases, by mandamus. 
 
 The principle is, that the jurisdiction of the courts remains, unless it appears, with 
 unequivocal certainty, that the legislature intended to take it away. 
 
 Cooley, in his work on constitutional limitations, page 623, uses the 
 following language : 
 
 As the election-officers perform for the most part ministerial functions only, their 
 returns, and the certificates of election which are issued upon them, are not conclusive 
 in favor of the officers who would thereby appear to be chosen, but the final decision 
 must rest with the courts. This is the general rule, and the exceptions are cf those 
 cases where the law under which the canvass is made declares the decision conclusive, 
 or where a special statutory board is established, with powers of final decision. And 
 it matters not how high and important the office, an election to it is only made by the 
 candidate receiving the requisite plurality of the legal votes cast; and if any one 
 without having received such plurality intrudes into an office, whether with or with- 
 out a certificate of election, the courts have jurisdiction to oust as well as to punish 
 him for such intrusion. 
 
 In the case of The People vs. Cook, 4th Selden, page 83, the court use 
 the following language : 
 
 In The People vs. Vail, (20 Wend., 12,) the case of The People vs. Ferguson is ex- 
 pressly recognized as sound law, aud Brouson, J., says that in those legislative 
 bodies which have the power to judge of their own members, it is the settled practice, 
 where the right of the sitting member is called in question, to look beyond the cer- 
 tificates of the returning officers, "And I think," he observes, " a court and jury with 
 better means of arriving at the truth may pursue the same course." * * * 
 
 Nor is there any danger to be apprehended to the security of our institutions by pur- 
 suing this practice ; the right to an office is no higher than the right to life, liberty, or 
 property ; there is no principle that should withdraw the first from the cognizance of 
 a court and jury to the exclusion of the last. Both will indeed be safe under the 
 administration of the ordinary tribunals. 
 
32 
 
 The same doctrine is expressly held in the 17th Ark., 407, to which I 
 have referred. Also in the case of The People vs. Holden, 28th Cal., 
 page 123, and a vast number of other authorities to which I might re- 
 fer. I do not know of a State iu which the jurisdiction of contested 
 elections and usurpation iu office growing out of elections has been taken 
 from the courts; and the King's Bench has exercised this jurisdiction 
 for more than a centurv. 
 
 CIRCUIT COURTS OF ARKANSAS ARE SUPERIOR COURTS. 
 
 The circuit courts of Arkansas are superior courts of general, original 
 jurisdiction. It is true they are called inferior courts, because they are 
 inferior to the supreme court, but it is their jurisdiction and not their 
 name that determines their character. 
 
 Section 5, of article 7, constitution, provides that the circuit courts 
 should have the same jurisdiction that they then possessed, and gave the 
 legislature power to change their jurisdiction. The statute in force at the 
 adoption of the constitution of 1868, and which fixed the jurisdiction of 
 the circuit court, provided that they should have exclusive original juris- 
 diction in all cases, real, personal, and mixed, which shall not be cogniz- 
 able before the county and probate courts and courts of justice of the 
 peace. 
 
 Section 18 of the civil code of practice, as amended, provided as fol- 
 lows: 
 
 Circuit courts have original jurisdiction in all actions and proceedings for the en- 
 forcement of civil rights or the redress of civil wrongs, except when exclusive juris- 
 diction is given to other courts. Wheu such proceedings are not expressly provided 
 for in this code or by statute, the same may be had and conducted in accordance with 
 the course, rules, and jurisdiction of the common law. 
 
 Section 522 provides that in lieu of quo warranto and information in 
 the nature of quo warranto a civil action may be brought to prevent the 
 usurpation of an office or franchise. 
 
 From which it will be seen that the circuit courts of Arkansas cor- 
 respond with the court of King's Bench, iu England. 
 
 In Beaubien vs. Brinckerhoff, (2d Scam.,) the supreme court of Illinois 
 use the following language: 
 
 The circuit courts are the only superior courts in the State that possess original and 
 unlimited jurisdiction. They exercise, within their respective counties, all the powers 
 and jurisdiction of the courts of King's Bench and common pleas in England ; and, 
 although these courts are inferior to the supreme court, because appeals and writs of 
 error lie from their decisions to the superior court, yet this circumstance does not con- 
 stitute them inferior courts in the common-law sense of the term. Courts not of 
 record are denominated inferior courts, because if their proceedings are questioned in 
 the superior courts, they must specially show that they acted within their jurisdiction. 
 The circuit courts are pre-eminently the superior courts of this State. 
 
 In ex parte Watkins, (3 Peters, 205,) the Supreme Court use the follow- 
 ing language : 
 
 All courts from which an appeal lies, are inferior courts in relation to the appellate 
 courts before which their judgments may be carried, but they are not therefore infe- 
 rior courts in the technical sense of those words. 
 
 In view of these authorities, I cannot conceive how gentlemen can 
 call the circuit courts of Arkansas courts of inferior or limited jurisdic- 
 tion. 
 
 Mr. Lowe. It was not used on this side at all. 
 
 Mr. Bice. It was used directly in the briefs on file in this case. 
 
 The CHAIRMAN. As we understand the theory of your courts in 
 Arkansas, I do not think we shall have any difficulty in regarding the 
 
33 
 
 ciredit court as a court of superior jurisdiction in the legal sense of 
 the term. 
 
 Mr. Baxter. There is no doubt about it. I will here take occasion 
 to say that if I ever used the term of inferior courts, in reference to the 
 circuit court of Arkansas, it was used in comparison only with the 
 supreme court. 
 
 THE JUDGMENT OF THE CIRCUIT COURT WAS NOT VOID EVEN IF THE 
 COURT HAD NO JURISDICTION IN THIS CASE. 
 
 Mr. Eice. I next submit the proposition, that inasmuch as the Pu- 
 laski circuit court was a superior court of general original jurisdiction, 
 and questions growing out of contested elections and usurpation in 
 office were within the general scope of the jurisdiction of this court, 
 a judgment rendered in such a case is never void, but is valid and 
 binding, and a protection to all persons acting under it, until it is 
 reversed, even if in that particular case the court had no jurisdiction. 
 
 The Chairman. You claim that there may be such a thing as a 
 court of that character, taking cognizance of a question over which 
 it has no jurisdiction, and that if its action is erroneous, it can be re- 
 versed. 
 
 Mr. Eice. 1 go farther than that. I take the ground that it is not 
 void and cannot be disregarded, and that all parties are bound to 
 respect it until it is reversed. 
 
 Mr. Lowe. There is no doubt at all about that, if the court had 
 jurisdiction. 
 
 Mr. Eice. I say that there is no doubt about it, even if the court had not 
 jurisdiction. That is where we differ. I take this position, that not- 
 withstanding the general rule that the decisions of a court that has no 
 jurisdiction are void, still when a court of general jurisdiction decides a 
 matter within the general scope of its jurisdiction, when, in fact, it has 
 no jurisdiction in that particular case, yet the judgment is not void, but 
 is binding until it is reversed, although it may be decided afterward on 
 appeal that the court had uo jurisdiction. There was a certain class of 
 cases cognizable under the general jurisdiction of the court of King's 
 Bench in England. Afterward certain statutes were passed excepting 
 certain persons and cases from that jurisdiction, and making the juris- 
 diction local in the local court. Still the court of King's Bench took juris- 
 diction of those cases, and it was there decided (and the uniform current 
 of authorities sustained the decision) that if it is a question within the 
 general scope of the jurisdiction of the court, the tact as to whether 
 certain cases or persons were privileged and exempt from its jurisdiction 
 or were embraced in the exclusive jurisdiction of some other court, is a 
 question of construction $ and the court must make that construction, 
 and its' decision in giving the construction is not void, although it may 
 be erroneous. 
 
 In the case of Borden vs. The State, 11th Ark., 519, which was decided 
 upon the question as to what judgments were void, the court review 
 the whole doctrine and expressly decide that the judgments of a court 
 of general jurisdiction upon a matter within the general scope of their 
 jurisdiction is not void even though the court did not have jurisdiction 
 of that particular case. They cite approvingly Priggs vs. Adams, 2 Silk., 
 674. and use this language : 
 
 Then the act of Parliament erected the court of conscience in Bristol, provided that 
 if any action shall he brought in any of the courts of Westminster upon any cause of 
 action arising in Bristol, aud it appear upon trial to be under forty shillings, that no 
 
 3 AKK 
 
34 
 
 judgment shall be entered for the plaintiff; and if one be entered it should be void. 
 Nevertheless the court of King's Bench held that the judgment in the common pleas 
 in this case for rive shillings on such a cause of actiou was not a nullity, but was only 
 voidable by plea on error; because the common pleas was a superior court. In this 
 case the want of jurisdiction of the subject-matter was apparent on the face of the 
 record, and yet the judgment was held not to be a nullity. * * 
 
 Again, on page 547, the court proceeds : 
 
 The result of tbis mode of reasoning, then, from the premises that superior courts 
 are invested by the law with the power to decide upon their own jurisdiction, is sim- 
 ply the same that is announced by the authorities that we have first cited, that the 
 judgment of such courts are not void but only voidable by plea on error ; and this is 
 in exact harmony with the other doctrine, that the protection in regard to the judges 
 of these courts is absolute and universal. 
 
 This is a decision of our own court, of longstanding, which has never 
 been overruled, and it seems to me that it ought to have much weight 
 in determining the validity of the judgments of our circuit court. 
 
 In Vermont what correspond to our circuit courts are known as 
 county courts. A case had been taken from one of these courts to the 
 supreme court. After it was so taken to the supreme court a statute 
 was passed which, it was claimed, took the jurisdiction from the supreme 
 court and vested it in the county court. The supreme court rendered a 
 judgment, which was not set aside or reversed, and the defendant, Hall, 
 was imprisoned upon an execution issued upon this judgment. He 
 brought suit for false imprisonment, and Walbridge, the defendant in 
 this suit, pleaded the judgment and execution in bar. Hall contended 
 that they were no protection, as the court had no jurisdiction to render 
 the judgment. (See Walbridge vs. Hall, 3 Vermont, 119.) The court, 
 in their decision, use this language: 
 
 If the proceedings of this court, in rendering the judgment and awarding execution 
 under which the defendant justifies, are void, then neither the court nor the parties are 
 protected by them, but are trespassers, and are liable, as such, to the parties injured; 
 and if we render a judgment for the plaintiff we must subscribe to this position, how- 
 ever unpalatable it may be. We believe, however, that the highest tribunals of law 
 and equity in this State cannot be impeached in that way. The judgments of a supe- 
 rior court are never considered void, and the judges of a superior court are never liable 
 for acts done in a judicial capacity. 
 
 When courts of special or limited jurisdiction exceed their powers their whole pro- 
 ceedings are coram nonjudiee, and all concerned in such void proceedings are trespassers. 
 But this principle has never been and cannot be extended to superior tribunals, and 
 especially those which have the ultimate jurisdiction in all cases arising in other 
 courts. If the judgment here complained of was either erroneous or irregular, the 
 court, on a proper application, would set it aside ; but, until set aside, it is to be con- 
 sidered a regular judgment for every purpose. 
 
 In Yates vs. Lansing, 5 Johnson, Judge Kent, in delivering the 
 opinion of the court, says: 
 
 Where courts of special and limited jurisdiction exceed their powers, the whole pro- 
 ceeding is coram non judice, and all concerned in such void proceedings are held to be 
 liable in trespass ; but I believe this doctrine has never been carried so far as to justify 
 a suit against a member of the superior courts of general jurisdiction for any act 
 done by them in a judicial capacity. There is no such case, or decision, which I have 
 met with, and I find the doctrine to be decidedly otherwise. 
 
 In the ease to which I have already referred, (ex parte Watkins, 3 
 Peters, 205,) the court say that — 
 
 The courts of the United States are all of limited jurisdiction, and their proceedings 
 are erroneous if their jurisdiction is not shown upon them. Judgments rendered 111 
 s •< ii cases may certainly be reversed, but this court is not prepared to say that they 
 are absolute nullities, which may be totally disregarded. 
 
 Now, if the judgment rendered against Baxter is a protection to 
 Judge Whytock, if lie is not liable for acts done under it, it must arise 
 
35 
 
 from the fact that the judgment is not void; that it is valid until re- 
 versed; if this is so, if it is valid as to Judge Whytock, it is valid as to 
 all mankind, so long - as it remains unreversed. 
 
 There is another view of this ease. Mr. Baxter appeared in the cir- 
 cuit court, and filed a demurrer to the jurisdiction of that court, by 
 which he tendered an issue of law for the decision of the court. The 
 court was bound to decide that issue, and it was his duty to decide it 
 according to his honest convictions of the law. 
 
 That issue is one that the law authorizes to be made before him, and 
 he certainly has jurisdiction to try and decide that issue, and when he 
 does decide it, whether correctly or not, if he decides wrong the deci- 
 sion is not void, because he has jurisdiction to make the decision ; it is 
 only voidable for error, and while it remains unreversed it is the law of 
 that case, and the judgment in the case follows as a necessary conse- 
 quence, and is not of itself even erroneous, based upon the decision on 
 the question of law presented by the demurrer. Therefore, if the case has 
 been decided incorrectly the error is not in the judgment, but is in the 
 decision of the question of law arising on the demurrer, and as the court 
 had jurisdiction to decide that question, neither the decision upon that 
 point, nor the judgment rendered upon and necessarily resulting from 
 that decision, can be treated as a nullity, but are valid and binding until 
 reversed. Any other view of the subject would place the judge in a 
 singular attitude. If he decided that he had no jurisdiction, no harm 
 could come to him from that decision ; but he was compelled to decide, 
 and if he honestly believed that he had jurisdiction, and decided accord- 
 ing to his convictions, if he erred he would be liable in trespass for acts 
 done under that judgment. 
 
 It seems to me that such cannot be the law, either upon principle or 
 authority. 
 
 But our own court has again decided this question. After Brooks was 
 in possession of the franchise of the office of governor, under the decisiou 
 of the circuit court, and in possession of the archives, and was adminis- 
 tering the government, Baxter interposed an ineffectual resistance to 
 the government so administered by Brooks, whereby it became neces- 
 sary for Mr. Brooks to keep a military force to protect the State-house 
 and archives from Baxter's insurrectionary assemblage. 
 
 To defray these expenses Mr. Brooks, as governor of Arkansas, made 
 a requisition on the treasurer, under an existing statute, for a certain 
 sum for that purpose. Colonel Page, the treasurer, refused to honor the 
 requisition, and Mr. Brooks applied to the supreme court for a man- 
 damus to compel him to do so. 
 
 Upon the trial of this case Mr. Brooks's attorneys produced the judg- 
 ment of the Pulaski circuit court in the case of Brooks against Baxter 
 as evidence of his right to make the requisition as governor. The court 
 decided (as in the case in the 11th Arkansas, to which I have referred) 
 that the judgment was valid and binding until reversed, and compelled 
 the treasurer to houor the requisition. The attorney-general says, in 
 his opinion, that the treasurer had previously recognized Mr. Brooks as 
 governor, and that his refusal in this instance was evidently for the 
 purpose of making a case upon which a decision could be obtained, and 
 that such a decision was not authority. This conclusion of the attorney- 
 general is not only erroneous, but it is wholly unsustained by the facts. 
 Colonel Page recognized the fact that there was a controversy about 
 the office of governor, and while he fully recognized Mr. Brooks he was 
 unwilling to involve his bondsmen by paying out a large sum of money 
 upon his own judgment as to how that controversy would result, and 
 
36 
 
 consequently declined to act until such proceedings were taken as 
 would amount to a protection to him and his securities in any event, 
 and Mr. Brooks sued out the mandamus because he needed and was 
 compelled to have the money. 
 
 The attorney-general says also, in that opinion, that the supreme 
 court of Arkansas had rendered a decision at variance with this, grow- 
 ing out of the election matters in Arkansas, and that the government 
 had a right in such a case to decide which decision it would recog- 
 nize as authority; but the facts do not sustain this conclusion; the 
 decision upon the mandamus was not a decision upon the election, or 
 upon any matter growing out of it; it was simply a decision in harmony 
 with the authorities in that State, and sustained by the decisions of 
 other States, and in England, to the effect that the judgments of a 
 superior court of general jurisdiction were not void, but ivere valid and 
 binding until reversed. 
 
 The judgment of the circuit court ousting Baxter and deciding that 
 Mr. Brooks was entitled to the office of governor, and the decision of 
 the supreme court in the mandamus case, deciding that the judgment 
 of the circuit court was binding and valid until it was reversed, were not 
 presented to the executive department of the government as authori- 
 ties merely, as evidence of what the law was, but as an adjudication 
 and settlement of Mr. Brooks's right to the office, so long at least as the 
 judgment of the circuit court remained unreversed, and as an adjudica- 
 tion that Baxter no longer possessed any color of official authority. 
 This adjudication was binding alike upon the parties — the Federal 
 authorities and all persons whatsoever — and no department of the 
 Government of the United States had the power to set it aside, nor the 
 ight to disregard it. 
 
 CIRCUIT COURT HAD JURISDICTION. 
 
 But we insist that the Pulaski circuit court had ample and complete 
 jurisdiction to try the ease of Brooks against Baxter, involving the 
 right to the office of governor, and to render the judgment therein. 
 
 We have seen that the trial of a case involving an election to an 
 office properly belongs to the courts; the authorities to which I have 
 referred settle that point ; there are many other authorities to the same 
 eflcct. 1 will refer to the opinion of Judge Whiton in the case of 
 Attorney-General vs. Barstow, 4 Wis., page 700. 
 
 We have seen also that the circuit courts are superior courts of gen- 
 eral original jurisdiction. The subjects of contested elections and 
 usurpation of office are within the general scope of their jurisdiction. 
 
 Besides, the legislature, under the provisions of the constitution, has 
 expressly conferred upon then under their general jurisdiction complete 
 jurisdiction over the subject of usurpation in office in State as well as 
 county offices. 
 
 Section 522, Civil Code, provides that — 
 
 In lieu of tlic writs ni scire facias ami quo warranto, or information iu the nature of 
 i/uo warranto, actions, by proceedings at law, may be brought to vacate or repeal char- 
 ters, and prevent tin' usurpation of an office or franchise. 
 
 Section 525 provides that — 
 
 Whenever a person usurps an office or franchise to which he is not entitled by law, 
 an action by proceedings ;it law may be instituted against him either by the State or 
 tin- party entitled to the office <>r franchise, to prevent the usurper from exercising the 
 office or franchise. 
 
37 
 
 Section 527 provides that- 
 
 For usurpation of other than county offices or franchises the action by the State 
 shall be instituted and prosecuted by the attorney-general. 
 
 By which it will he seen that State offices are embraced. 
 
 But it has been insisted in argument that these proceedings did not ap- 
 ply to a person who took the office upon a certificate or declaration at the 
 commencement of the term, but only to one who usurped an office 1 hat had 
 been occupied by another. But as this action was given in lieu of quo 
 warranto and information in the nature of quo warranto, it follows that 
 all cases which could be tried by either of those proceedings are em- 
 braced within the remedy which was substituted for them, and it was 
 peculiarly the province of those proceedings to oust a usurper who 
 attempted to discharge the duties of an office to which he was not legally 
 elected. These provisions of the Arkansas code are taken from the Ken- 
 tucky code, and that was taken from the New York code, so that our 
 law is similar to that of New York. 
 
 From all of which it is perfectly apparent that the circuit court had 
 complete jurisdiction over the subject-matter of the suit of Brooks 
 against Baxter, unless that jurisdiction is taken away by section 19 of 
 article 6 of the constitution. We have already given our reasons for 
 denying that the section referred to confers any judicial power on the 
 legislature ; but, if it did, the presumption would be that the framers of 
 the constitution intended it as cumulative, having jurisdiction concur- 
 rently with the courts but not exclusive of them. 
 
 The courts have jurisdiction, concurrent at least, with the legislature, 
 unless the section referred to expressly takes that jurisdiction from 
 them ; therefore we should gather as far as we cau what the intention 
 of the framers was in that respect. 
 
 The constitution of 1830, (section 3, article 5,) after providing for the 
 counting of the votes, and declaring the result in the exact words of the 
 constitution of 1868 upon that subject, provides that — 
 
 Contested elections for governor shall be determined by both houses of the general 
 assembly, in such manner as shall be prescribed by law. 
 
 Now, if the legislature had believed that this language gave the legis- 
 lature exclusive jurisdiction of these contests, it would have provided in 
 the statute putting this provision iu force a certain and uniform remedy 
 such as is always expected to be found in a judicial tribunal, but instead 
 of that it left it optional with the legislature to entertain the contest or 
 not in its discretion; or, in other words, the legislature could, if it chose, 
 entertain the contest, or, if unwilling to be burdened with the investiga- 
 tion, it could refuse to entertain it, and remand the party to the courts 
 of the country, which the legislature evidently regarded as having juris- 
 diction. 
 
 The passing of this statute amounted to a legislative construction of 
 that language. Afterwards the legislature passed an act providing 
 that, if a vacancy occurred in the office of governor, when more than 
 eighteen months of the term was unexpired, the president of the senate 
 should call a special election to elect a governor. Section 85 of the act 
 (Gold's Big., 477) provides that if such election is contested it shall be 
 decided by the supreme court, which amounted to another legislative 
 construction of section 3, article 5, to the effect that the jurisdiction in 
 contested-election cases was not vested exclusively in the legislature. 
 
 Section 19 of article 6 of the constitution of 1868 was borrowed from 
 section 3, article 5, of the constitution of 1836, and as the convention 
 took it after the language had received that legislative construction, 
 
38 
 
 we are bound to presume that they used the language as thus con- 
 strued. This view of the case is confirmed by the fact that the legisla- 
 ture at the first sessiou after the adoption of the constitution of 1868, 
 many of whose members were in the convention, especially conferred 
 this jurisdiction on the courts, which they would have known was un- 
 constitutional if they had construed section 19, article G, as conferring 
 exclusive jurisdiction on the legislature. 
 
 There is nothing in the language of section 19, article 6, or the section 
 from which it was borrowed, which tends in the least to show that the 
 framers intended to vest exclusive jurisdiction in the legislature, unless 
 it arises from the use of the word determine as used in the sentence 
 which provides that " contested elections shall be determined by both 
 houses," &c. 
 
 I have already said that the word determine was used more in a par- 
 liamentary than judicial sense; it seems also to be so used in the consti- 
 tution of 1836. It becomes necessary to ascertain what meaning was 
 given to it when used in a judicial sense. 
 
 The constitution of 1836 says that contested elections shall be deter- 
 mined by the legislature, &c, from which it is claimed that no other 
 tribunal had any jurisdiction in such cases ; yet in section 2, article 6, of 
 the same constitution it is provided that the supreme court shall have 
 jurisdiction to issue writs of error and supersedeas, certiorari and habeas 
 corpus, mandamus and quo warranto, and other remedial writs, and hear 
 and determine the same. Now if the use of the word det\ rmine confers 
 exclusive jurisdiction on the legislature in contested-election cases, then 
 the same word confers exclusive jurisdiction on the supreme court in all 
 cases of remedial writs ; yet it has never been construed to have that 
 effect, and there is not a court in the State that does not exercise some 
 of that enumerated jurisdiction, and it has been sanctioned by all the 
 courts ever since the State was organized. 
 
 The language of section 19, article 6, of the constitution of 1868, upon 
 contested elections, was borrowed from the constitution of 1836. The 
 meaning and significance with which the framers of that constitution 
 used the word determine, as shown by the use of the same word in the 
 same instrument in conferring on the supreme court jurisdiction over 
 remedial writs, and as interpreted by the legislature in the two acts I 
 have cited, was also borrowed with the language, and when that word 
 was used in the constitution of 1868 it was used simply to confer upon 
 the legislature the power to try contested elections, but was never used 
 or intended to deprive the usual and proper tribunals of their jurisdic- 
 tion over that subject. The same language is used in the constitution 
 of 1868, in conferring jurisdiction upon the supreme court in cases of 
 remedial writs, but it was not used with the intention of depriving the 
 other courts of jurisdiction over those writs, and has never been under- 
 stood to have that effect ; the other courts daily exercise that jurisdic- 
 tion. That language is used in this connection, to confer jurisdiction 
 upon the supreme court, to be exercised concurrently with the other 
 courts, within the scope of whose general jurisdiction this class of cases 
 is embraced. 
 
 The word determine, as applied to the supreme court, in cases of reme- 
 dial writs, or as applied to the legislature, in cases of contest, has no 
 negative meaning whatever, and is not used in that sense. 
 
 We challenge the other side to produce a respectable authority upon 
 earth that sustains the assumption that section 19 of article 6 of the 
 constitution deprived the circuit court of its jurisdiction over the case 
 of 1 books against Baxter. But we will produce authorities to show that 
 
39 
 
 such language can never deprive a superior court of its jurisdiction ; 
 even negative words will not ordinarily have that effect. 
 
 I refer to and adopt so much of the opinion of Judge Whytock, in 
 the case of Berry vs. Wheeler, (to which 1 have referred,) and the author- 
 ities there cited, as bears upon this point, which is as follows : 
 
 The general and elementary rules applicable to the construction of constitutions 
 and statutes arc the same (Dwarris on Statutes and Constitutions, Potter's ed., chap. 
 19, p. 654.) 
 
 Judge Dillon, in his treatise on Municipal Corporations, discussing the subject, thus 
 deduces the rule in regard to these special remedies: "The principle is that, tin- juris- 
 diction of the courts remains, unless it appears with unequivocal certainty that the 
 legislature intended to take it away." "A provision that no court should take cogni- 
 zance of election cases by quo warranto, &c, would doubtless divest the jurisdiction 
 of the judicial tribunals, and so perhaps of a provision that a council should have the 
 sole or the final power of deciding elections." Hence Judge Dillon remarks that pro- 
 visions in city charters to the effect that the common council of cities "shall be the 
 judge of the, qualifications, or of the qualification and election of its own members," 
 will he construed to lie a cumulative or primary tribunal ouly — not an exclusive one. 
 (Dillon's Municipal Rep., sections 141 and 715.) 
 
 riie rule as thus explained is supported by the, best English authorities. In the 
 ease of Rex vs. Morely, an early one, (2 Bur., 1040,) Lord Mansfield presiding, the stat- 
 ute was in these words : " No other court shall intermeddle with any cause or causes 
 named in the statutes, but they shall be finally determined in the quarter sessions 
 only." The court said: " The jurisdiction of this court is not taken away unless 
 there lie express words to take it away." In another early case (1 Holt, N. P., 147.) a 
 similar statute was construed in like manner. The same rule was announced in chan- 
 cery, (2 Mylne and Craig, 613.) In Holt, N. P., defendant's counsel insisted that a 
 special remedy having been provided by statute, this ousted the jurisdiction of the 
 court. The court did not agree with him. 
 
 In Iowa it was held, (in the State vs. Funk, 17 Iowa Rep., 365,) where a city charter 
 provided that the common council should be the "judge of the election and qualifica- 
 tions of its own members," but no ordinance had been passed prescribing any method 
 of trial, that the mere provision in the charter did not preclude a contestant from a 
 resort to an information in the nature of a quo warranto. In The State vs. Wilming- 
 ton, (3 Hairing, Delaware, 294,) a provision in a city charter that the common council 
 " shall be the judge of the election, returns, and qualifications of their own members 
 and other officers of the corporation," was held by the supreme court of Delaware nut 
 to oust the jurisdiction of the courts. In 3 Hill, (N. Y.,) 42-52, the, supreme court, 
 composed of Judges Nelson, Bronson, and Cowen, held the following language : "If 
 the words of the, charter had, or could afterward have, the force, of a statute, still it 
 might be answered that it contained no clause expressly denying to the king's bench, 
 or the court holding its place, the exercise of its general powers in the particular 
 case." Numerous other authorities might be cited in support of this construction. 
 
 In a more recent case, decided in California, under a similar statute, (The People vs. 
 Holdeu, 28 Cal. Rep., 123,) the principle aud rule expounded in the cases in Iowa, Dela- 
 ware, and New York is substantially re-asserted. 
 
 In analogy to the question the court is considering, the, construction 
 given by the supreme court in Tucker ex parte, (25 Ark.,) wheu review- 
 ing the force and effect of section 20, article 8, of the constitution, may 
 be cited. This section provides "that in criminal causes the jurisdic- 
 tion of justices of the peace shall extend to all matters less than felony 
 for final determination and judgment." The. supreme court held that 
 this language did not exclude the jurisdiction of the circuit court in 
 criminal causes less than felony, but that it was concurrent. The same 
 principle, involving a quo warranto, was decided by the supreme court 
 in the case of The State vs. Johnson, (17 Ark., 407,) before referred to. 
 
 But if we were to concede all that is claimed for the word "determine," 
 in section 19, and that the legislature had exclusive jurisdiction of con- 
 tested elections, it does not affect the jurisdiction of the circuit court 
 to try the case then presented. 
 
 Whatever may be the popular or parliamentary meaning of the term 
 "contested election," in legal parlance it means a case where a party at 
 the close of the polls did not have a majority of the votes, 'out claims 
 
40 
 
 tbata sufficient number voted for his opponent who were not entitled to 
 vote to change the result, and for that reason seeks to contest and cor- 
 rect the election itself. Such is not the case in the suit which Brooks 
 brought against Baxter, upon which he recovered judgment for the 
 office. 
 
 Although he had been defrauded in registration and by ballot-box stuff- 
 ing while the election was progressing, still, at the close of the polls, he 
 had received largely the most votes, and was elected. Consequently, he 
 did not wish to go behind that event or in any mauner to contest what 
 had transpired up to that time; he was willing to abide by it. Upon it 
 he rested for his title to the office of governor, but conspirators in the 
 interest of Baxter were destroying and suppressing the evidence of his 
 title ; they were forging false evidence to be used against him. He was 
 compelled to go to the courts to supply the testimony which had been 
 destroyed, to prove his title and recover the franchise. He sought to 
 enforce the case as it stood at the close of the polls. Instead of con- 
 testing the election, he sought to give force and validity to its results, 
 upon which he based his right to recover the franchise from the usurper 
 who fraudulently held it contrary to law. 
 
 But we can go farther. On the morning when the declaration was made 
 by the president of the senate the full returns showed that Mr. Brooks 
 was elected, and in order to produce the desired result they suppressed 
 the returns of three whole counties and forty-eight precincts in other 
 counties. Mr. Brooks went into court to supply the proof of which he 
 had been thus fraudulently deprived, and to claim a legal right based 
 upon the testimony in the case. 
 
 Counsel have criticised the proceedings in the circuit court, all of 
 which amounts to nothing, becanse any irregularities such as they speak 
 of would only amount to error, and would not invalidate the judgment ; 
 yet, as these matters have been misrepresented, it is due to the judge 
 and Mr. Brooks that I make a brief statement of what occurred. 
 
 The action was regularly brought, process was served on Baxter, and 
 Baxter tiled a demurrer to the jurisdiction of the court. Mr. Brooks 
 took his testimony establishing his right to the office, Baxter failed to 
 cross-examine Brooks's witnesses, and took no testimony on his own be- 
 half, but stood upon his demurrer; a short time before the judgment was 
 rendered, Mr. Whipple, one of Brooks's attorneys, moved to submit the 
 ease upon the demurrer; Baxter's attorneys asked to have it laid over 
 for the present, to which Mr. Whipple consented, which, according to 
 our practice, left the case standing upon his call, and he had a right to 
 bring it up at any time he saw lit. It has been asserted that there was 
 an agreement that the case was not to be called up. I am prepared to 
 say that that assertion is absolutely false; no such agreement was ever 
 made, none such has been proved. 
 
 But if such an agreement had been made and violated, if would not 
 affect the validity of the judgment. Baxter's remedy would have been 
 by motion to setaside thejudgment, which, upon proof of such a state of 
 facts, would have been granted. But it is contended that upon the over- 
 ruling of the demurrer there should have been a judgment respondeat 
 ouster. That is not Hie practice in Arkansas. When ademurreris over- 
 ruled it stands as if no demurrer had been filed, so far as the future steps 
 in the case are concerned, and leaves the complainant without defense, 
 and the plaintiff had a right to move to take the complaint for confessed 
 and have judgment upon it. When demurrer was submitted the fact 
 Mas published in the two daily papers in Little Rock, and the fact was 
 well known. Judge Why lock's views as to the jurisdiction of the cir- 
 
41 
 
 cuit court over these cases was also well known, because his opinion 
 in the case of Berry vs. Wheeler had been published in the Little Rock 
 Daily Republican, and he swears that he had been apprised that the 
 decision in the quo-warranto case was the result of a programme and 
 conspiracy, and he did not regard it as authority to him. 
 
 The case took the usual course of other cases in that court. My 
 former partner, Mr. Benjamin, had an important case standing upon a 
 demurrer about that time, lie was not in court when the demurrer was 
 decided and judgment was rendered against his client. He, however, 
 instead of declaring martial law and resisting the judgment, tendered, 
 within a reasonable time, an answer setting up a meritorious defense, 
 with an affidavit of merits, and an excuse for not having previously filed 
 an answer, and the judgment was set aside. But the truth is, Baxter 
 could not make an affidavit of merits; he could not swear that he had a 
 meritorious defense ; he had no excuse to offer for not having filed an 
 answer, except that he intended to defy the decision of the court. But 
 the various attorneys who have acted for Baxter in this matter appear 
 to have conceived the idea that the proper mode of showing that a judg- 
 ment is not valid is to indulge in low, personal abuse of the judge who 
 rendered it, in answer to all of which I will take this occasion to say 
 that Judge Whytock is the equal of any of them in integrity, capacity, 
 and character, and if all of them were put together, he would far exceed 
 the aggregate in all the attributes of a man, a lawyer, and a gentleman. 
 
 Mr. Baxter says he intended to defend that suit in the circuit court. 
 In his letter to the President, written some time before that, he winds 
 up by saying that he has interposed a demurrer, or shall do it, (I forget 
 which expression he used,) and that if the court took jurisdiction he 
 should resist, even to the extremity of martial law, and he advised the 
 President to send re-enforcements down to the barracks at Little Pock, 
 thinking, I suppose, either that the President might ueed his aid, or that 
 he might need the President's aid in resisting the judgment of the 
 court. It is a notorious fact that he did not intend to defend the case, 
 and the proceedings in the case show it. His weak pretext that he 
 intended to defend it is simply ridiculous in the face of all these cir- 
 cumstances. He had avowed, time and again, that he would never sub- 
 mit to the decision of any court, supreme or circuit ; that he would re- 
 sist any adverse decision by martial law and violence. But if the cir- 
 cuit court would decide for him and the supreme court would decide for 
 him, he would abide by their decision; but if they deci< led against him, 
 he would resist. That is a kind of " honest submission to the law" 
 which is really commendable. But the truth on the subject is, that 
 Baxter had proceeded on the idea, that there would have to be a writ 
 issued to put Brooks in possession of the office, and that while that writ 
 was in the hands of the .sheriff he would have time to get his White- 
 League militia together and put down the civil authorities, and ride 
 rough-shod over the people of the State, aud trample under foot the 
 constituted authorities of the law. 
 
 But in this Baxter was disappointed. No process was necessary, and 
 none was issued; consequently, Brooks took possession before Baxter 
 had opportunity to resist the law. 
 
 THE JUDGMENT EXECUTES ITSELF. 
 
 But it has been seriously couteuded that some kind of a writ or pro- 
 cess should have been issued to execute the judgment and deliver the 
 franchise recovered, and that such process should have been executed 
 
42 
 
 by an appropriate officer ; but a moment's reflection will show the 
 absurdity of this position. Mr. Brooks had by that judgment recovered a 
 franchise which existed only in law ; it was an incorporeal hereditament that 
 was wholly incapable of manual delivery, aud when the judgment was 
 rendered vesting the right to the franchise in Mr. Brooks, the posses- 
 sion instantly passed. The judgment executed itself, aud when he took 
 the oath of office he was, to all intents aud purposes, governor of Ar- 
 kansas de facto and de jure. 
 
 In the case of Welch vs. Cook, State treasurer, &c, published in 7 
 How. Pr. Reps., (S. Y.,) the court, ou pages 284—5-6, uses the following 
 language: 
 
 It becomes important, therefore, to inquire what this judgment settles. It is admit- 
 ted on all hands that it settles the question between these parties that Mr. Cook is a 
 usurper of the office, and not entitled to hold the same, aud that the petitioner, Mr. 
 Welch, is entitled to the office. It is claimed by the counsel for the petitioner that the 
 rendition of the judgment operal es per se to oust Mr. Cook aud exclude him from the office 
 aud also to establish the right of Mr. Welch thereto ; aud that upon taking the official 
 oath, and tiling the bond required by the statute, he becomes virtually installed into 
 the office. The counsel for Mr. Cook insists that the judgment has no such effect. * * 
 
 The statute therefore is, if judgment be rendered upon the right of the party, he 
 shall be entitled, upon taking the oath aud executing the bond, to take upon himself 
 the execution of the office; aud it makes it his duty, immediately thereafter, to demand 
 of the defendant the books and papers belonging to the office from which he shall have 
 been excluded. From which he shall have been excluded from what ? The statute 
 itself furnishes the answer, for it speaks of nothing but the rendition of the judgment, 
 and gives to the party entitled, upon the rendition of the judgment, the right at once 
 to take upon himself the execution of the office, on taking the oatb, &c. 
 
 After remarking that the courts of England treat the judgments as 
 actually ousting aud removing the defendant from the office, the court 
 
 says : 
 
 But whatever may be the effect of such a judgment in England, I apprehend that 
 under our statutes the rendition of the judgment operates as an actual ouster and exclu- 
 sion from office. And such being the effect of the judgment in this case, I take it to be 
 Aery clear that the appeal from it cannot re-instate Mr. Cook. The judgment stands in 
 full force and effect pending the appeal, and uutil reversed. 
 
 This case was affirmed by the court of appeals in 4 Seld., page 220. 
 In the case of The People vs. Conover, 6 Abb. Pr. Pep., 222, the court 
 
 says : 
 
 This court held in Welch vs. Cook, 7 How. Pr. Rep., 262, that upon the rendition of 
 a regular judgment of ouster in the suit of the people against a public officer, aud in 
 favor of another individual for the office, the officer becomes actually ousted and ex- 
 cluded from office, and the party declared to be entitled, upon taking the official oath 
 aud tiling his bonds, when required, becomes, eo instanti, invested with the office. It 
 would seem, therefore, to be settled in this State, that in a suit like the present, the 
 party declared to be entitled to the office takes it upon judgment being rendered. The 
 judgment, so far as the office is concerned, executes itself. * * * There is nothing, 
 so far as the office is concerned, which the sheriff can seize and deliver to the plaintiff. 
 
 The same principle was decided by the supreme court of Georgia, in 
 the case of Fulgham vs. Johnson, 40 Ga., 166. So it will be seen that 
 Mr. Brooks became de jure governor by having received the grant from 
 a majority of the legal votes cast at the election. He having recovered 
 the franchise from Baxter, a usurper, by a binding and valid judgment 
 of a superior court of general and competent jurisdiction; the judgment 
 executed itself. Mr. Brooks took the necessary oath of office, and, in 
 the language of the court in the case in 7th Howard, took upon himself 
 the execution of the office, and was regularly administering the govern- 
 ment, as completely invested with all the rights, powers, and preroga- 
 tives of the office, as was the governor of any State in the Union. 
 
AFTEE THE JUDG-MENT AEL OFFICIAL ACTS OF BAXTER "WE HE VOID. 
 
 All of which deprived Mr. Baxter of all color of authority, even as a 
 de facto governor, and all official acts which Baxter attempted to per- 
 form, after that judgment was rendered, are ab olutely void, and of no 
 more force than if done by a person who had never claimed to be gov- 
 ernor. 
 
 This question is expressly decided in Rochester and Genesee Yalley 
 Railroad vs. Clarke National Bank, 60 Barb., 234. On page 249 the fol- 
 lowing language is used by the court: 
 
 When the color of authority notoriously ceases, the reason for sustaining the acts 
 as the acts of officers de facto ceases. We think thai when by a judgment of the court 
 of last resort, in a direct proceeding to determine the title of officers de facto, it lias 
 been adjudged that tbey had no rightful title to. the office, but are mere usurpers, then, 
 at least, as fco all who have notice of such proceeding and judgment, the color of au- 
 thority has ceased ; and this without regard to whether anybody else has been inducted 
 into the office or not. As officers de facto there must be at least a presumption that 
 they are rightfully in office. Such presumption cannot be said to exist after the de- 
 cision of a competent tribunal to the contrary. To hold that persons who, according 
 to the decision of the court having jurisdiction to decide so as to bind the parties and 
 the public, are mere usurpers, may still exercise the powers and discharge the duties 
 of the usurper's office, is to deprive the judgment of ouster of all force or efl'ect. 
 
 Therefore, after that judgment was rendered and Mr. Brooks had 
 taken the oath of office, and entered upon the duties of administering 
 the government, he was to all intents and purposes governor of Arkan- 
 sas, and Baxter was to all intents and purposes a private citizen with- 
 out color of official authority — he was out of possession and was not 
 governor either de jure or de facto — and all his pretended acts were ab- 
 solutely void. 
 
 BAXTER CONVENING LEGISLATURE A NULLITY, AND PROCEEDINGS 
 
 UNDER IT VOID. 
 
 The legislature could be convened only upon the call of the governor. 
 Baxter's call, which was after the judgment was rendered, and when he 
 was out of possession, was absolutely void, and that extra session of the 
 legislature had no legal existence; and the pretended act calling the 
 constitutional convention was of no more legal force than if it had been 
 passed by any other assemblage of men. 
 
 We have here presented to us the same case that was presented in 
 Rhode Island under the Dorr constitution, a case in which the theory 
 that the people, of their own volition, without regard to the forms of law, 
 had a right to change their constitution, was entirely and forever 
 exploded. 
 
 The vote of the people in Arkansas upon the call of a convention, or 
 upon the ratification of the constitution, did not give vitality to the pro- 
 ceedings. The same was done in Rhode Island by a most decisive vote, 
 and yet it was held in that case that no majority, however large, could, 
 in such a manner, change the organic law of the State, or overthrow an 
 existing and recognized government. The supreme court of that State, 
 in its instructions to the grand jury, say that the question is not how 
 many votes were given upon these propositions, but what right had the 
 people to vote on them at all. 
 
 Therefore there can be no serious pretext that the pretended constitu- 
 tion of 1S74 sprung from a legal source. If it is sustained, it must be 
 on the ground, which was rejected in the Rhode Island case, that a ma- 
 jority of the people of a State possess the inherent power to throw off 
 
44 
 
 their government and establish another at will, and that the minority 
 are bound by the lawless act of the majority; but constitutions which 
 are made to protect the minority, and to guard against hasty and unwise 
 legislation, would afford but little protection if they could be set aside 
 with more ease and less formality than would attend the repeal of an 
 act of the legislature. But the Baxter and Garland dynasty are pre- 
 cluded from claiming validity for their constitution on that ground. The 
 fact that they attempted to bring it into existence under legal authority 
 is a confession on their part that it is void, unless it was originated, 
 prepared, and adopted in pursuance of the forms of law. 
 
 1 presume, however, that no one seriously contends that the people 
 have the inherent and inalienable right, in their natural or individual 
 capacity, to throw off the government under which they live in any man- 
 ner other than that provided in express terms, or by clear implication, 
 in the incorporated government. However the precedents and author- 
 ities may differ upou other matters, they all agree that nothing short of 
 a legal act of the legislature will authorize the assembling of a conven- 
 tion to frame a constitution. To displace the "existing organic law of 
 the State the convention must be legally called, must have legal exist- 
 ence, and the constitution must be legally ratified. I know of no prece- 
 dent or authority to justify the claim that less than that can displace 
 an existing constitution. If the people, in their individual and natural 
 capacity, have the legal right to throw off and absolve themselves from 
 an existing government, it would follow that secession was legal, and 
 every act of the Government in suppressing the rebellion was au inva- 
 sion of the legal rights of the people of the seceded States. Such a doc- 
 trine cannot be urged with much hope of success. 
 
 Something has been said about the large vote that was giveu for the 
 constitution. We have shown that that amounts to nothing, and it is 
 more than probable that the importance that was thought to be attached 
 to that circumstance contributed much to the unprecedented vote that 
 was reported. There is a population of about 500,000 in the State ; the 
 assessment for poll-taxes shows about 105,000 males over twenty-one 
 years of age. In the race of Brooks and Baxter, in 1872, the reported 
 vote was about 80,000. A large number of voters were refused registra- 
 tion, but a much greater number of fraudulent votes were stuffed in the 
 ballot boxes, so that that election is really no test of the voting strength 
 of the State, ami, although the campaign was very thorough and excit- 
 ing, there were probably not more than 70,000 votes cast. Previous to 
 the election, upon the ratification of the Garland constitution the 
 republican State convention issued an address, advising the repub- 
 licans not to participate in that election, and most of the leading and 
 active republicans were absent from the State when the election was 
 held. Yet at that election the board of canvassers appointed by the 
 convention reported that there were about 103,000 voles cast. It is 
 almost preposterous to contend that in a sparsely settled country, with 
 a population of 105,000 male inhabitants, 103,000 votes could have been 
 cast, even if the republicans had actively participated in the election. 
 This election was held on the L3th day of October. On the first Tuesday 
 in November the congressional election was held, which was overlooked 
 by United States supervisors, and although closely contested, but little 
 over 65,000 votes were cast, showing a failing off of about 45,000 votes 
 from the other election held about three weeks before. This shows but 
 little significance can be given to that election, or any other election not 
 held in accordance with law. 
 
45 
 
 THIS NOT A CONTESTED-ELECTION CASE. 
 
 It is suggested on the other side that the ease which is presented in 
 this record is a mere contested election, over which Congress has no 
 jurisdiction. J have endeavored to show that this never was a ease of 
 contested election. Aside from the judgment, it is a ease where ihe 
 legally elected governor was kept out of the office by fraud and force, 
 and a usurper was pretending to discharge the duties of the office. 
 That usurper has overthrown the government and established another 
 in its stead, and has transferred this to another person, who is adminis- 
 tering it upon the people of the State without any authority of law. It 
 certainly would seem that Congress in carrying out the provisions of 
 the Constitution, in guaranteeing to every State a republican form of 
 government, would have the right, at least, to secure to the people of 
 Arkansas their legal and recognized government, administered by 
 officers of their own choosing. 
 
 But if this was ever a case of contested election, it has long since 
 ceased to occupy that attitude. The State courts mentioned in the tele- 
 gram of Attorney-General Williams to Baxter have settle*! and disposed 
 of that question, and Mr. Brooks's right does not depend upon contest 
 ing the election, but it rests upon the valid and binding judgment of 
 the Pulaski circuit court. A pretended government, unknown to the 
 Government of the United States, brought into existence by unauthor- 
 ized parties, and contrary to the forms of law, has sprung into exist- 
 ence, and its adherents are in insurrection against the recognized gov- 
 ernment established in 1868, of which Mr. Brooks is the lawlul governor ; 
 and when this case is presented to Congress, and relief is demanded 
 under the fourth section of article 4 of the Constitution of the United 
 States, we are told that Congress is powerless to grant the necessary 
 relief. If this be so the Federal Government is weak indeed, and its 
 guarantees afford but little protection. 
 
 FEDERAL INTERFERENCE WITH THE SOUTH. 
 
 Much is said in a certain class of newspapers about Federal interfer- 
 ence in the affairs of the South. This complaint is not new. In LS01 
 the Federal Government felt compelled to interfere with the affairs of 
 the South, for the reason that a large number of persons in that section 
 violated the laws and disregarded the rights of citizens of the United 
 States. The same class of papers complained then that complain now. 
 
 It is more than probable that hereafter, for the same reason, the Fed- 
 eral Government may, from time to time, find it necessary to so far 
 interfere with their affairs as to secure to loyal citizens, in those loca- 
 tions, as much protection, at least, as would be afforded them on foreign 
 soil. 
 
 But any prejudice that may exist upon this subject cannot properly 
 be applied to Mr.Brooks. He only asks the Government to restore him to 
 the position which he rightfully occupied at the time when the Govern- 
 ment did interfere in Arkansas affairs, in May last. He only asks to 
 be restored to the position he then occupied, from which he was removed 
 by the Federal Government. All he asks of the Government is to put 
 him in statu quo. 
 
 THE GARLAND LEGISLATURE ESTABLISHING PEON SERVITUDE. 
 
 The legislature under the Garland government have introduced bills 
 establishing the %)eon system of servitude ; also a bill creating a large 
 
46 
 
 Dumber of sub-penitentiaries, with permission to hire out the convicts 
 on farms, and abolishing the distinction between grand aud petit 
 larceny ; also making vagrancy a felony punishable in the peni- 
 tentiary. Under this bill the planters could combine and refuse to 
 hire any of the colored people for a given length of time, whereby every 
 negro that did not own land would become a vagrant, or near enough 
 one to be convicted by a jury composed of persons that expected to cul- 
 tivate their plantations with convict labor. Many persons are unwilling 
 to believe that they would avail themselves of such laws for such pur- 
 poses ; but they certainly would, or they would not pass them. Soon 
 after the war closed, almost every southern State adopted this system 
 of legislation, and they have not changed their views upon that subject 
 since. Besides, it is perfectly natural that they should do so ; they 
 have been raised from childhood to believe that the negro existed to la- 
 bor for them without compensation ; they believe that the amendments to 
 the Constitution, and all legislation securing to the negro freedom and po- 
 litical rights, are not only void, but infamous ; aud that the Government 
 has robbed them in freeing their slaves, and they will avoid the conse- 
 quences of this supposed robbery whenever they cau safely do so. They 
 feel justified in resorting to almost any means to secure that which they 
 believe is rightfully theirs ; that is, the labor of the colored race with- 
 out compensation. That they should do so, with their opinions, ought 
 not to excite wonder. They are far less at fault for pursuing such a 
 course than the men who gave to the negro his freedom would be, if they 
 were now to remand thefreedmen, for their civil aud political rights, to 
 a class of persons who deny that he has any such rights, and honestly be- 
 lieve that he is adapted only to the condition of servitude. If the Gov- 
 ernment is going to sustain a system of revolution and violence in the 
 southern States by which the State governments are to be placed in the 
 hands of those who carried them into rebellion in 1861, freedom to the col- 
 ored race will be a curse, rather than a blessing. In slavery the property- 
 interest of the owner would protect them from the lawless, against 
 whose violence they have no protection as freemen ; and whenever they 
 have to rely upon that class of persons to enforce the laws that protect 
 them in their civil and political rights, those laws will become a dead 
 letter, and those rights will exist alone in theory. 
 
 IMPORTANCE OF THE QUESTION, AND THE REMEDY. 
 
 This case presents to Congress some grave questions, which it must 
 decide, because a failure to act amounts to a decision. If in this case 
 the precedent should be established that the lawfully-elected officers of 
 a State government can be kept out of office by fraud and force, and 
 t lie judgments of the courts awarding to them their offices can be dis- 
 regarded and resisted by a usurper who has obtruded himself into the 
 office, and that usurper can conspire with others and overthrow the 
 government in a manner unknown to the constitution and laws of the 
 State, it seems to me that it would lead to a-destruction of constitu- 
 tional government, and in the southern States would amount to a sur- 
 render of all the fruits of the war to those who were supposed to have 
 been defeated in the conflict. 
 
 If I am correct in the view I have taken in this case, the only remain- 
 ing (( next ion is, What is the remedy ? I see but little difficulty in that. 
 If Mr. J books was legally elected governor in 1872, that constituted 
 him governor de jure. When lie qualified and took possession of the 
 office, under the judgment of the Pulaski circuit court, and was dis- 
 
47 
 
 charging its duties, be became governor de jure and de facto, and was 
 as perfectly invested with a complete title to the office as was the gov- 
 ernor of any State. Baxter ceased to have any color of office, and his 
 act in convening the legislature, and all other pretended official acts of 
 bis, were void; and ad acts done under or by virtue of bis pretended 
 authority were also void; and the Garland constitution, and the acts 
 which lead to it, or have been done under it, are of uo validity what- 
 ever. 
 
 Therefore Mr. Brooks is the legal governor of the State, and the con- 
 stitution of 1S68 is still in force, and those who are administering the 
 Garland government, or sustaining it, are in insurrection against the 
 lawful government of Arkansas. 
 
 Section 4 of article 4 of the Constitution provides that the United 
 States shall guarantee to every State a republican form of government. 
 First, it is to guarantee to every State a government; second, that gov- 
 ernment must be republican. The government under the constitution 
 of 18G8 is the only legal government in Arkansas, and that government 
 must be guaranteed. The Executive can only act upon a prima- facie 
 or apparent case ; different persons claim to be governor of Arkansas ; 
 the President can only determine who appears to be governor. Con- 
 gress can investigate and determine the whole case — can determine who 
 is actually governor, and what is actually the true government ; and, 
 according to the doctrine in the Luther-Borden case, when Congress 
 has made that determination, it is binding upon the Executive and 
 other departments of the Government. 
 
 And if Congress should decide by resolution or otherwise that Mr. 
 Brooks was the lawful governor of Arkansas and that the constitution 
 of 1868 was still in force, it would follow that Garland's pretended gov- 
 ernment was an insurrection against the lawful government. The Ex- 
 ecutive would thus be apprised upon whose requisition for aid he should 
 act, and upon the requisition of Mr. Brooks as governor, thus recog- 
 nized, it would be the duty of the President to put down the insurrec- 
 tion existing in Arkansas against the legal government, and to main- 
 tain the lawful government of the State. 
 
 This is the case which Mr. Brooks presents to Congress. He presents 
 it in his own name, as the lawful governor of Arkansas, wdio has been 
 wrongfully deprived of the office, and compelled to give place to a 
 usurper. He presents it in the name of a large majority of the people 
 of that State, whose rights have been outraged, and who have been rob- 
 bed of their suffrage. He presents it in the name of the law, whose tri- 
 bunals have been stricken down by arbitrary power. And he presents 
 it in the name of two hundred thousand freedmeu in Arkansas, who 
 shudder at the thought or being turued over to the tender mercies of a 
 class of men that regard them as only tit for servitude or assassination — 
 who are now awaiting the result of this case with the same painful soli- 
 citude and suspense with which, in former years, they awaited the falling 
 of the hammer upon the auction -block. 
 
 With such a case we are unwilling to believe that Mr. Brooks is to be 
 deprived of his legal rights by a government of whose burdens and 
 dangers he has borne his full share, and to whose welfare, in its 
 hour of peril, he has contributed more than his portion of sacrilice and 
 sorrow, and to which he has never left a duty unperformed. 
 
LIBRARY OF CONGRESS 
 
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 Conservation Resources 
 
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 LIBRARY OF CONGRESS 
 
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