Q LIBRARY OF CONGRESS 014 647 886 4 Conservation Resources r So-ITr/ta^ TvriA I ^HK^NSA-S SPEECH OK HON. MILTON SAYLER, OF OHIO HOUSE OF REPRESENTATIVES, MARCH 3, 1875. WASHINGTON: GOVERNMENT PRINTING OFFICE. 1875. .Szr SPEECn HON. MILTON SAYLP]E The House bavins iiuder consideration tlie report of the select committee to in- quire into the condition of afiairs in the State of Arkansas — Mr. SAYLER, of Ohio, said : Mr. Speaker : I approach tlie discussion of tlie matter now before the House witli a full sense of its gravity and importance. It is no ordinary political question now pending for decision, and by no means a question that should be determined by mere considerations of party policy or by party prejudice and passion. It is a far-reaching ques- tion, involving the fundamental principles of our American system and atfecting the right of the people of a great and sovereign State of the Federal Union to make their own laws and to have them interpreted, applied, and executed by officers of their own choice. It is a question that forces upon the House directly the decision whether the government of a State which the people have almost unanimously adopted, in accordance with all law and precedent, and which is ad- ministered to the satisfaction of very nearly the entire body, with peace and quietness, shall be permitted to stand, or whether it shall be overthrown and destroyed and a government obnoxious to the people forced upon them by Federal arms and sustained by military power. I bespeak for this question, therefore, a fair and deliberate consideration, and shall endeavor to discuss it, not as a partisan, but as one who loves his country and seeks to do justice in his public acts. ' The facts in this case, Mr. Speaker, are so fully and distinctly set forth in the report of the committee that I shall not repeat them, ex- cept so far as may be necessary for the purpose of the argument I propose to present. On the 27th day of May, 1874, a select committee was appointed to inquire into the disturbed condition of governmental affairs in the State of Arkansas, and all the facts relating thereto and the causes thereof, and whether said State has now a government republican in form, the officers of which are duly elected, and as now organized ought to be recognized by the Government of the United States. At the time of the passage of this resolution two different men, Joseph Brooks and Elisha Baxter, each claimed to be the lawful gov- ernor of the State of Arkansas ; each had surrounded himself with a military force and appealed to arms in vindication of his cause ; and each had applied to the President of the United States for aid. The Legislatiu-e, then assembled in extraordinary session, under the call of Elislia Baxter as governor, had also passed a joint resolution applying to the President to proteet the State against domestic vio- lence, and the President had issued his proclamation on the 15tli day of the same month recognizing Mr. Baxter as the lawful execu- tive of the State and commanding the insurgents to disperse and submit themselves to the lavpf ul authority of said executive. I propose to inquire, first, into the proj)riety of this recognition of Mr. Baxter on the part of the President, and what right or power to interfere beyond this exists either in Congress or in the executive de- jiartment of the General Government. Mr. Brooks and Mr. Baxter had been opposing candidates for the ofitice of governor at an elec- tion held on the 5th day of November, 1872, in accordance with the provisions of the constitution of 1868, adopted by the people of Ar- kansas under the reconstruction acts of Congress. Mr. Baxter was the candidate of the republican party and Mr. Brooks of what was known as the reform or liberal party, the democrats having no dis- tinct candidate of their own, but generally supporting Mr. Brooks. In accordance with the provisions of the constitution referred to above, the returns of this election were sealed and transmitted to the seat of government by the returning officers and directed to the presiding ofticer of the senate, which assembled in January, 1873, and who during the first week of the session thereof opened and pub- lished the same in the presence of the members then assembled. The result of these returns of the election for governor was declared to be, for Mr. Baxter, 41,684, and for Mr. Brooks, 38,726 ; whereupon the jiresident of the senate announced that Mr. Baxter was duly elected governor of the State of Arkansas. The oath of office was adminis- tered to him by Chief-Justice McClure, and he entered upon the dis- charge of the duties of the office and was fully recognized as governor by the Legislature of the State. He continued to discharge the duties of his office without qixestiou until the 19th day of the following April, after the Legislature had been in session three and a half months, and within six days of the adjournment thereof, when Mr. Brooks filed his petition, in accordance with the constitution and laws of the State, to contest the election of Mr. Baxter as governor, and praying for leave to introduce pi'oof. The provision of the constitution of 1868 in this liehalf is as fol- lows: Contested elections shall be determinptl by both houses of the General Assembly in such manner as is or may hereafter be prescribed by law. And the provision of the law in this behalf is : Sec. 100. All contested elections of governor, except as herein provided, shall be decided by the joint vote of both houses of the General Assembly. Sec. 101. If any person contest the eU'ction of irovernor, be sliall i)rosenthis peti- tion to the General Assembly, sittiiiir forth the points on wliich he will coiitist the same and the facts which he will prove in suj>j)ort of such points, and sliall pray for leave to introduce his proof ; and a vote shall be taken by yeas andiiays in eacu bouse whether the prayer shall be granted. The petition thus filed by Mr. Brooks, upon a motion that he shall have leave to introduce his proof, was rejected by the house of rep- resentatives by a vote of 53 yeas to 9 nays, notwithstanding the fact that thirty-six members of that body had been elected upon the ticket Avith Mr. Brooks and were identified with the party of which he was the candidate. It is soniewliat remarkable that the filing of this petition should have been so long delayed, and equally so that the vote should have been so nearly unanimous in support of Mr. Baxter and against Mr. Brooks. That Mr. l^rooks had stronj;' grouiul.s on which to con- test the election of Mr. Baxter there can be no reasonable donlit. The testimony abounds in a detail of most disgracefnl frands upon the rights of the people and ,npon the rights of Mr. Brooks as one of their candidates. These frands are the more fnlly developed, because those who had been the friends and partisans of Mr. Baxter, and by whom these frauds had been committed, had become his enemies, and came before the committee as willing witnesses, unblushingly divulg- ing the rascalities and outrages of which they themselves had been the iierpetrators, and by which they themselves, in one way and an other, in high station and low station, hoped to profit. The entire election machinery of the State — and it was perhaps as unfairly constructed by the constitution of 1868 as that of any State could possibly be — had been in the hands of the republican party, whose candidate Mr. Baxter was. The governor had appointed the registrars, and the registrars had appointed the judges and clerks of election in the various voting precincts ; and it is in many instances charged, by those who themselves had been the actors, that registra- tion was refused to large numbers, that large numbers properly registered were stricken from the rolls, that others were not allowed to vote, that the ballot-boxes were stufted, and that the returns were tampered with. The democrats and conservatives of Arkansas certainly had great reason to complain, for, as the report of the com- mittee well states — The whole proceeding by many of those havinij official charge of the registration voting, and returning the votes is characterized by the grossest unfairness and dis- honesty, and instead of an honest etfort to ascertain the will of the voters, they endeavored by every possible means to secure the ascendency of their own party friends. As a matter of justice to Mr. Baxter, however, T am compelled to assert that the testimony is singularly free from any evidence con- necting him personally with these frauds. He seems to have been then, as he proved himself afterward, an honester and truer man than some of his supporters supposed him to be. I have no disposition whatever to palliate or excuse these frauds, and the committee has had no disposition to conceal them in their report. I denounce them as a gross outrage upon the rights of the people of the State and upon the rights of Mr. Brooks, and as an ever- lasting shame and disgrace to the men who themselves perpetrated them, or caused them to be perpetrated by others. I must say, how- ever, that one's sympathy with Mr. Brooks is very much diminished by his i>resent evident alliance with the very men whom he charges with having cheated him out of his office, and through whom he most persistently seeks to perpetrate a greater outrage upon the people than was i>erpetrated upon himself — Eesolved to ruin or to rule the State — l)y his alliance with the very men for whom he had so great aflec tiou, that he is said to have declared publicly during the campaign if the people "would only elect him governor he would fill the peni- tentiary so full of them that their legs would stick out of the win- dows." But suppose these statements of frauds are all true, and suppose everything is true that is charged even by the bitterest enemies of the Baxter administration, what case does it present for the interfer- ence either of Congress or the President? It is after all but a case of contested election, and not at all diU'erent in its essential character from other cases of that kind. Mr. Brooks is not the only man that was ever counted out in a contest for governor; he is not the only G man who, by the frauds of those niauaging the elections, lias been cheated out of his just rights. Arkansas is not the only State in "which these things have been done. Frauds have been perpetrated in other States, and in other States cases of contested election have arisen. But that Congress has any power to interfere in such cases is too absurd a proposition for grave argument. Congress has no powers except under the Constitution of the United States. These powers are enumerated in the eighth section of the first article thereof, and it will not be pretended by any one that the right to determine the result of a State election is found among them. The proposition that any such right exists, and especially if there be added to it the right to enforce such determination by military power, would be utterly subversive of our whole system of government, and an utter annihilation of all the constitutional rights of the States. I do not believe that in this instance the representatives here assembled, under ]iolitical pressure of whatever kind, will establish a precedent so fatal and pernicious. Each State provides for itself a tribunal before which cases of this kind shall bedetermined. By the constitution of Arkansas, adopted in 1868, as I have already quoted it, and in which respect it resembles the constitutions of most of the other States of the Federal Union, the Legislature had been vested with complete and final authority in the premises ; and tlie Legislature having acted under this authority, their decision, whether right or wrong, is binding upon the State and upon the United States as well as upon the parties to the con- test, and cannot be called in question by the Federal Congress or the Executive, nor is it even subject to judicial review by the courts of the State. This latter proposition has often been held by the courts, and is as well established as any other principle : Contested elections, like all other controversies, must be submitted to the deter- mination of some competent tribunal, and, satisfactory or not, right or wrong, the decision must be sustained or tliere can lie no end to controversy aiul no settled government. It is far more important to the people that the executive power should be unquestionable than that any particidar person should wiekl it. This is a summary of the whole question made by Mr. Cooley, the author of the able work on constitutional limitations. When on the 19th day of April, 1873, Mr. Brooks filed his petition in the lower Iiouso of the General Assembly of Arkansas, contesting the election of Mr. Baxter", he acted entirely in accordance with the constitution and laws of the State. This was the manner of making the contest specifically prescVibed by the constitution and by statute. The adjudication then made was final and the mode of it exclusive. This adj udication once made, the courts of Arkansas could neither interfere with nor review. The books are full of authorities to this eliect, and I know of none to the contrary. In The State vs. Marlow, 15 Ohio State Reports, 134, it w^as held that — A specific mode of contesting elections having been provided by statute, according to tlu> requirements of the constitution, tliatmode ah)ne cau bo resoi-tcd to in escbr- sion of t lie common-law mode of in(|uiring by proceedings in quo warranto. The statnti' wliiclx gives tlie siiicial rciiicdy and" prescribes the mode of its exercise binds I lie .State as well as individuals. So, too, in 28 PeuTisylvania State, 9, The Attorney-General vs. GaiTagues, and elsewhere in the decisions of that State, it was held — That when there are two claimants uiuler the same election for the same office which only one of them cau have, it constitutes a case of contested election, whicli is to be tried in the n»)dc specially provided for iu such cases, and not by the ordi- nary forms of judicial process. I need not refer to otlicr cases. The doctrine is well established, and has become part of the ordinary teaching of the text-books, that where jurisdiction is specially conferred by the Constitution and laws of a State upon other tribunals, and the mode of its exercise pre- scribed, it cannot be difterently exercised by a proceeding in quo war- ranto, as at common law, nor by the supreme court and district courts under a more general ground of jurisdiction in quo icarranto. But in this case we are not without the decision of the supreme court of the State of Arkansas itself. Mr. Brooks was not satisfied with the decis- ion of the Legislature in the manner prescribed by the constitution and laws of his State, but determined, against all precedent and all law, to push his case through the courts. Accordingly, after the ad- journment of the Legislature, on the 2d day of June of the same year, he procured the presentation of a motion for a writ of quo warranto to the supreme court of the State by the attorney-general upon his relation. The tiling of this motion was resisted, and after extended argument was, on the 4th day of June, denied by the court, though the written opinion was not hied until the 29th day of September. The refusal of the permission to file the petition for the writ was based upon the ground I have already suggested as general in such cases, that there was no jurisdiction in the court. To use the very clear and concise language of the judge who delivered the opinion : Under this constitution the determination of the question as to whether the per- ifon exercising the office of governor lias been duly elected or not, is vested exclu- sively in the General Assembly of tW State, and ncitlicr this nor any other State court has jurisdiction to try a suit in rclatiou to sucli cimti'st, be the mode or form vrh.at it may, -whether at the suit of tlie attorney-general or on the relation of a claimant thidugh him, or by an individual alone' claiming' a light to the oflBco. Such issue should lie uu^de before the General Assembly; it is their duty to decide, and no other tribunal can determine that question. We are of the ojiinion that this court has no jurisdictiou to lu'ai- and determine a writ of quo warranto for the purpose of reudeiiug a judguu'ntof ouster againstthe chief executive of this State, and the right to lile the information and issue a writ for that purpose is denied. To this opinion Judge McClure dissented. It has been charged that the judgment in this case was extorted from the court by threats and intimidation of the governor and by the presence of armed men ; but the facts in the testimonj^ not only do not show this to have been true, but affirmatively show that the charge is entirely without foundation. More than that, the decision is in entire accord with all the decisions of the courts of other States upon similar questions, and there is no allusion to any intimidation whatever in the long and elaborate dissenting opinion of Judge Mc- Clure. There was no necessity for the court to take any action if they were apprehensive of any interference with the dignified and inde- pendent discharge of their high prerogative. They might have re- mained silent. Furthermore, the testimony of Judge Gregg expressly disclaims any impression made by military interference. The judgment of the court referred to above is elaborately dis- cussed and fully sustained by the Attorney-General of the United States in his opinion addressed to the President on the 1.5th day of May, 1874, and shortly after it was rendered it was affirmed in the case of Wheeler vs. W'hytock, known as the " prohibition case." On the 1st day of October, 1873, Stephen Wheeler tiled a petition in the supreme court of the State of Arkansas for a writ of prohibition against the circuit judge, John Whytock, commanding him to re- frain from considering further a case for the recovery of the office of auditor of the State. This case grew out of the same election as the case of Brooks against Baxter, and the facts were identical. The su- preme court affirmed iu direct terms the decision given in the cose^l: Brooks against Baxter and granted the writ, all the judges conciu-- riug iu the reasoning upon this point. Even Chief Justice McClure, who had dissented in the former opinion, uses the folio wing language: As to all matters of contested election for the offices of governor, Ueutenant-gov- emor, secretary of state, auditor, treasurer, attorney-general, and superintendent of public instruction, I am of the opinion tliat it can only be had before the General Assembly. I do not believe the Legislature intended to'givethe circuit court juris- diction oi contested elections, which, by the constitution, were cognizable only be- fore that body. The right to an office comes from the people, and they have the unquestioned power to determine and prescribe the terms upon which it may be enjoyed. "When the office of auditor was created, the people declared, as they had an u.nquestionable right to do, that a contest for it shoiihl only be made before the Legislature. To hold that the circuit court has no Jurisdiction is not denying the plaintiff in the coiu-t below a remedy, nor is he in any manner deprived of a consti- tutional right. • And Judges Searle and Stephenson, in the same case, use the fol- lowing language : The office of auditor being one of those enumerated in the constitution in connec- tion with that of governor, as one the contest for which shall be detennined by the General Assiiubly, we are clearly of opinion that this case falls within the rulesof decision laid ilow n iu the case cited above. It is true there exists in the case of the governor a statutory mode of procedure Ttlative to such contest, but it is idle to insi.st that because the Legislatuic has failed to provide the mode by which the right to the other offices, mentiom-d in section 19 of article 6 of the constitution, that this neglect on the part of the Legislature can vest the courts with jurisdic- tion to determine such a contest. If that body had ever desired to do so, and had in terms enacted a law conferring upon the couits of the State the jurisdiction to trj' and detennine such cases, it would have been wholly unwarranted by the or- ganic law, and must, necessarily, have been so decided. The trial of the right to these offices is, in terms, enioined upon another department of government, and must be exercised by it ; and the attempt to impose the duty upon the courts would be as much a violation of the constitution as a failure to perf onn it altogether. These two opinions are direct and conclusive of the whole subject- matter. Under the decisions of the Supreme Court of the United States (2 Peters, 492; 1 Wallace, 175j they are binding upon the legal tribunals of the State and upon all the legal tribunals of the country, and even itpon the Supreme Court of the United States itself, and were so recognized by the Attorney-General in his elabo- rate opinion to the President referred to before. In Arkansas they were acquiesced in by all parties in the State. A case that had pre- viously been brought by the Attorney-General in the Pulaski circuit court, under section 525 of the Arkansas code, was promptly dis- missed. All parties regarded the question as settled. Even the republican State central committee issued an address on the 8th day of October, 1873, congratulating the people on this settlement of all vexed questions, and using the following words : By the decision to which reference has been made it is distinctly held that the determination of the (lui-stiou wlietlu-i- a pci-son exorcising the office of governor has been duly tdecttd or not, is vested exclusivelj' in the General As.sembly of the State, and that neither tln^ supreme nor any other State court has jurisdiction to tiy a suit in relation to such contest, be the mode or form what it may, wlietlur at thie suit of the attipiniy-general, or on the relation of a claimant through him, or hy an individual aloiu' claiining a right to the office. This decision was jiroiriptly fdlldWiMl by till- dismissal of tlic- suit bi'dught in tin- circuit court of PuhisUi ( 'ounty by the Stale of ArUausas against Klislia Uaxtcr, and now at last we can congratu- late tlie people of the State upon the undoubted termination of this gubernatorial warfare. U'he Legislature ha.s acted in the i)remises ; its deci.sion is final ; and Gov- ernor Baxt^T's tenure of the office he holds is tixi^l and irrevocable. The action of the supremo court and the Legislature settles all vexed questions calculated to disturb the peace of tlie State; and Governor Baxter, retlecting the policy of the republican party, to secure peace, quiet, and order, seized u))on this, the first opportunity presented since the organization of the State government, to muster out tixe entire militia force of the State, Xo well-disposed citizen, whatever his political faith may be, can fail to indorse nd comineud this action of the governor. It attests the good faitli ami liigh pur- poses of the re])uhlicaii iiartvonall questions aflectiiiii' tlu' iutci-est-s of tlie j.eoph^, and is an eaviit-st of tlie elUu'ts tliat (Jovernor liaxter and tlie repuhlieau party are makins to brin^ tlie State of Arl^ansas to as Iii-li a eouditiou of peace, hiw, and order as is enjoyed by the most favored State in the Union. All citizens are tlit'refore called upon to pres.rve peace in their respective local- ities. Let no man be ieopardized in property or life. Lot the expression of opin- ion on matters of public concern be free and unrestrained, and the laws vigorously aud impartially enforced. This address is signed by Powell Clayton as chairman, and by Stephen W. Dorset as one of the members of the committee, now aud then Senators of the United States from the State of Arkansas. But Mr. Brooks was still not satisfied, notwithstanding the direct decision of this contest by the General Assembly of the State and notwithstanding the explicit decision of the supreme conrt that neither it nor any other conrt of the State had jurisdiction in the case ; aud on the 16th day of June he entered a suit for the office of governor aud the emoluiuents thereof in the Pulaski County circuit court, under the following provisions of the code of Arkansas : "WTienever a per.son usurps an office or franchise to which he is not entitled by law, an action by proceedings at law may be instituted against him by the State or the party entitled to the otlice or franchise, to prevent the usurper from exercising the oflice or franchise. (Code of Practice, 525.) To this action, on the 8th day of October, 1873, and after the filing of the written opinion of the supreme court in the case of Brooks against Baxter, a demurrer was interposed. This demurrer was not considered until six months afterward, aud the case was allowed to sleep until on the 15th day of April, 1874, in the absence of Baxter and his counsel, at a time when the bar generally understood that no business during the week woitld be taken up, after a similar case brought by the attorney-general before the same court had been dismissed, and in utter and reckless disregard of the decision of the supreme court, upon the pretense of the submission of the demurrer, this judge of a mere circuit court, whose judgments are subject to revieV and bound by the decisions of the supreme court, overruled the demurrer to the jurisdiction, aud immediately rendered judgment of ouster against Baxter, and declared that the contestant, Brooks, was entitled to the office of governor of Arkansas. This, too, upon the determination of the technicality of the jurisdiction, Avithout testimouy heard on the (|uestion of the contest for the office of the chief executive of the State; this, too, iu direct violation of the laws of Arkansas, that upon the determination of the demuiTer " the party demurriug may answer or reply ; " this, too, after the decision of the supreme court upon the same question, and between the same parties, the quo warranto case haviug been at the relation of Brooks. And this actiou was taken under the pleat! iugs filed in the case upon the ground that Baxter had usurped the office which he held. Whatever may be the facts with regard to the election of 1872, what- ever frauds may have been perpetrated, and however clearly it might suljsequeutly be shown that at that election Brooks received a higher number of votes than Baxter, yet Baxter can in no possible legal sense be regarded as a usurper. He held his office under all the forms of law. A nsiu-per is one who seizes an office without right or holds it without color of title. Of this action of the circuit judge the Attorney-General well says That this circuit court should have rendered a judgment for Brooks under the,' e circumstances is surprising, and it is not too much to say that it presents a case of judicial insubordination which deserves the reprehension of every one who does not 10 •wish to see public confidence in the certainty and good faith of judicial proceedings wholly destroj-ed. It is well enough to add here that even in this very case relied on by Brooks as establishing his right to the office of governor, taken from the Pulaski circuit court on certiorari to quash the judgment declaring Brooks governor of Arkansas, the supreme court of that State has recently decided that this circuit court had uo jimsdiction over the subject-matter nor of any of its incidents, and that its pro- ceedings and judgment were void, and that the judgment must be quashed. Yet upon this decision thus rendered by the circuit court, and claiming that the judgment executed itself, Mr. Brooks, in April, 1874, immediately proceeded to the State-house, and unlawfully and with force ejected Mr. Baxter, and took possession of the office and records. Then it was that the two parties surrounded themselves with armed forces ; then it was that those terrible scenes of violence and bloodshed began which have disgraced the State; and then it was that the two parties made their application to the President for relief against domestic violence. Matters remained in this condition until the 11th day of May, 1874, when the Legislature, convened in extraordinary session under the proclamation of Governor Baxter, recognized him as governor, and passed a joint resolution calling upon the President for protection ; and accordingly, on the 1.5th day of the same month, the President issued his proclamation recognizing Baxter as the lawful governor and commanding the insurgents to disperse. That proclamation is in the following words : Hy the President of the Vnited States of America. A PKOCLAMATION. Whereas certain turbulent and disordeily persons, pretending that Elisha Bax- ter, the present executive of Arkansas, was not elected, have combined together with force and arms to resist bis aiitliority as such executive, and otlier aiitlioiities of said State; and wliereas said Klislia Baxter has been declared duly elected by the General Assembly of said State, as provided in the constitution thereof, and has for a long jieriod becu exercising the functions of said otHce into whichhe was inducted according to the constitution and laws of said State, and ought by its citizens to be considered as the lawful executive thereof ; and whereas it is pro- vided in the Constitution of the United States thattlie United States shall protect every State iu the Union, on apidication of the I^egislature. or of the executive when the Legislature cannot be convened, against cessary lor tlie pnrpose of suppressing .such insurrection or causing thi^ laws to be duly executed; and whereas it is required that whenever it may be necessary, in the judgment of tlie President, to use the military force for the pur- ]H)so aforesaid, he shall forthwith by proclamation commaTui sucli insurgents to tlispeise and retire ])eaceabl.y to their respective homos witliin a limited time: Xow, tlieiefoi-e, 1, Ulysses S. Grant, President of the United States, do hereby make ]>rochuniition and command all turbulent and disorderly persons to disiierso and retire peaceal)ly to tlieir respective abodes within ten days fiom this date, and In^reafter to suhniit tliemsi'lves to tlio lawful authority of s;iid executive and tlie other constituted :iuthorities of said State ; and I invoke the aid and co-operation of all good citizens thereof to uphold law .and preserve pu die peace. In witness whereof I have lu^reiinto set ray hand nud caused the seal of the United States to be alhxed. 11 Done at the city of "Washington, this 15th day of May, in the year of our Lord 1874, and of tlie Independence of tlie United States th&'ninety-ciie(l in any ciicuit coiirt of 'tlic State. To say ttiat a contest shall be decided by a decision, aiid then to say after the decision is made that such contest is not deteiinined, but is open as it ever was, is a contradiction in terms. Brooks appears to claim that when a contest for Governor is decided by the General Assemblj', the defeated party may treat the decision as a nullity and proceed de novo in the courts. This makes the constitutional provision as to the contest of no effect, and the proceedings under it an empty form. When the house of representatives dismissed the petition of Brooks for a contest, it must be taken as a decision of that body on the questions presented in the petition. Doubtless the makers of the constitution considered it unsafe to lodge in the hands of every circuit court in the State the power to revolutionize the executive deiiartment at 12 ■will; anil tliiir wisdom is forcibly illustrated by tlie case under consideration, in wliich a person wlio bail l)een instalb'das i;overnor accordinn to tbe constitution and laws of tlie State, after an undisturbed iucunibeiicy of more tban a year, is de- posed by a circuit indue, and auotber iiersnn i)ut in liis ]ibice u]mn tbe nnsn)i]>orted statement of tbe latter tbat be bad jeceived a niajoiity of votes at tlie election. Looking at the constitution alone it ap])ears perfectly clear to my mind tbat tbe courts of tbe State liave no rijiiit to try a contest al)out tbe otiicc of covernor, but tbat exclusive jurisilietion over tluit i|uestion is vested in tbe (icneial Assem1>ly. Tliis view is contiruied l)y judicial authority. (See opinion of Attorney-General, Executive Document No. 51.) I cannot close this part of my argument, sustaining the action of the President and showing tlie validity of Mr. Baxter's title to the office of governor, without (luoting the peculiarly apiio.site words of one who stands deservedly high in the councils of the republican l)arty, and Avho upon another occasion and referring to another mat- ter " presented the consideration that this question involved a great fundamental principle vital to the existence of our Government, which was, that where a question arose under a State law or under a State constitution, it was to be decided by the State tribunals ; and that the decision of the tribunals of the State upon questions arising under their own laws was binding not only upon the people of the State but upon the Government of the United States ; that this was the necessary result from our form of government ; and that any alleged irregularity, or, if yon please, fraud in a State election in the election of ;i giiviTiior or of a State Legislature was cognizable and was de- terminable by the tribunals of the State, and when the State tribu- nals had passed upon such questions their decision was binding upon the Government of the United States ; and that if the Government of the United States assumed to go behind the decision of the State tribunals to examine into the questions arising in a State election under State laws, if it assumed the right to set aside a State gov- ernment because of alleged frauds or irregularities in a State election, the assumption of such power was the end of the State governments, and placed every State government in this Union at the will and caprice of the Government of the United States, and that State gov- ernments thereafter would exist only by suflerauce." Such, Mr. Speaker, was the condition of affairs in Arkansas up to the time of the appointment of the committee, and such are the grounds justifying the action of the President in his recognition of Mr. Baxter as the lawful governor of the State. I come now to consider important events which have occurred since that time in that State, and which have resulted in the adop- tion of a new fundamental law, the election of new officers, and the establishment of a general condition of peace and harmony throughout the State. At the extraordinary session of the General Assembly of the State which met, as before stated, on the 11th day of May, 1874, there was passed an act providing for a convention of the people of the State of Arkansas to frame a ncAV constitution, and providing for the submission of the question of its adoption to a vote of the people. This election was held on the 30tli day of June, 1874, and resulted in a vote of 80,2.59 for the convention and 8,607 against the convention, being a majority of 71,652. Tlie delegates Avho were elected at the same time met in convention at the city of Little Rock on the 14th day of July following, and proceeded to frame a new constitution for the State, which was submitted to a vote of the people on the i:?th day of October, 1874, and ratified by a vote of 78,697 in its favor to a vote of 24,807 against it, being a majority for the new cou.stitutiou of 53,890. At this same election were also 13 cliosen all tbe officers provided for under the new coustitntioii, and including theStiite, district, county, luid township officers, and mem- bers of the General Assembly. A. H. Garland was the , conservative candidate for the office of governor, and received a vote of 76,453. To Mm there was no opposing candidate. The other candidates on the same ticket received about the same number of votes. The Legisla- ture chosen at this time assembled at Little Eock on the 11th day of November, 1874, when Mr. Garland was duly inangiTrated as gov- ernor, and all the State, circuit, county, and townshi]) (iflicers, chosen at the same election, entered upon the discharge of their duties. All the former officers gave way peaceably to those who were thus chosen under the new constitution with the single exceiition of Vol- ney V. Smith, who had been elected lieutenant-governor on the same ticket with Mr. Baxter in 1872, and who at the time of the retirement of Mr. Baxter and the inauguration of Mr. Garland, issued a jirocla- mation calling upon the people to support and obey him as governor. He also made an appeal to the President for military power to enforce his pretensions, to which appeal no attention seems to have been paid. Friends who urged him to this foolish course seem all to have deserted him ; no one has appeared before the committee in advocacy of his claims ; no one pretends that he has any claims; and his unwise and absurd assumption of right seems to have fallen into merited contempt. There can be no pretense raised from the facts in the case that the call for the constitutional convention was not made, and the consti- tution as framed by that convention adopted, and the officers provided for under it chosen, not only by a very large majority of the vote cast, but by a very large majority of the legal voters of the State. There is no pretense, indeed, of unfairness in either of these elections, or that the announced result is not substantially correct. The only objection iirged to the election adopting the new constitution and choosing the officers provided for under it was that the formerly existing registration and registration and election officers had been set aside and new ones created. Whatever may be said of the pro- priety or impropriety of this change of registration and election officers, yet those who served as such officers at this election were cer- tainly officers de facto, and as such all acts done by them were good and valid. Acting under this color of authority their acts were bind- ing, even though we may admit the most extreme position of the other side, that in point of law and right they were no such officers. It is not disputed that both of these elections were a fair and full expres- sion of the will of the voters, and, consequently, the technical objec- tion to the character of the election officers, under all the decisions of our courts, falls to the ground. (See 8 New York, 67 : 11 O. S. K., 511 ; 6 Cowen, 2.3 ; 12 O. S. R., 16.) But deeper and more important objections were urged to the va- lidity of the new constitution and of the State government organized under it. It is claimed, in the first place, that Governor Baxter at the time of issuing the call for the convention which framed the constitution of 1874 was neither de jure nor de facto goA'crnor of the State, and consequently that no rightful and lawful authority ex- isted in him to issue such call. This objection has been fully an- swered in the preceding portion of my argument, in which I have shown that he was in the highest sense governor de facto et de jure, not only exercising all the duties of the office of governor and de- clared to be such by the solemn adjudication of the General Assem- bly of the State, but also recognized as such by the President of the United States. 14 It is also claimed that the Legislature itself, which convened on he 11th day of May, 1874, and passed the act providing for the sub- mission to the people of the question of calling a convention to revise the constitution, was not a lawful body, and consequently that its proceedings were void. The objection more particularly urged against it is the fact that subsequent to the election in 1872 and during aud subsequent to the session held iu 1873 between forty and fifty of its members had been appointed by the governor to executive offices and their places filled at a special election held on the 4th day of November, 1873. It is not disputed that the governor under the constitution had entire authority to make these appointments. Indeed, this large appointing jiower vested by the constitution of 1868 in the chief executive was one of its most glaring defects, and one which the people had long desired to have remedied. It is not disputed that the appointments were made, and that the offices were accepted by these several members, uor that the persons accepting them were ineligible under the constitution to have a seat in either branch of the Geueral Assembly. It is not disputed that in case of a vacancy occurring in either house it is made the duty of the governor, under the laws of Arkansas, to issue a writ of election to fill these vacancies. It is indeed urged that there was no evidence of the election of the members who appeared to fill vacancies. This objection is based upon the assumption that, Mr. Brooks having seized the archives of the State and retained them in his possession, no sufficient data could be reached to determine who had been elected. It is a sufficient answer to this that the secretary of state, in accordance with the law, made out the lists of elected members, and returned them to each house, giving the members thus returned a prima facie right to their seats, and which lists, upon comparison with the records in the office of the secretary of state subsequently recovered, are found to be entirely correct. The members thus chosen at the special election appeared at the extraordinary session, presented their credentials, and were admitted to seats in the upper and lower houses respect- ively. The constitution of Ai-kansas then in force, like the constitu- tions of all the other States, provided that "each house should deter- mine the rules of its proceedings, and judge of the qualifications, election, and return of its members." No contest arose as to the seat of any one of the newly-elected members, and of the former members who had accepted other offices no one appeared to assert his right to a seat in the Legislature. This, under all law and all the usages of all the States, was iiual and conclusive of the whole matter. There is no evidence whatever and no claim made of fraud at the election of these new members. The election seems to have gone pretty much by default, no one supposing at the time that the Legis- lature would be convened in extraordinary session. It is also urged against the validity of the acts passed at this ex- traordinary session that the Legislature met within the military lines of Governor Baxter. This was indeed true during the early part of the session. But there is no evidence of any attempt being made to control the action of the Legislature by the military power, nor to in- terfere in any way with the attendance of the members. I cannot do better than quote the words of the report : As to the fact of the existence of martial law, and that the Legislature met within Baxter's lines tlie ((unniittoe liave to say that altlioufrli these eireuinstanees cannot 1)6 cousitlereil as favdiahlc towisc and caictiil Ictiislation, still as no attcnijit ajipears to have heen made to iinvcnt the attendance of iiicioliers, or to contr(d in any way their action by military force, they do not consider these facts autlicient to deprive the acts of that Legislature of the "ordinary force of such action. 15 There was do other body of men in Aik;iii.siis chiiiiung to be the Legishitnre of the State except that body choseu at the election of 1872, which first assembled in January, 1873, and subsequently in ex- traordinary session in May, 1874. There was no contest between rival Legislatures to decide. This was the only body claiming to act in that capacity. All attempts to question the validity of its acts seem puerile and absurd, and no such attempt has been made as to any other one of its acts, except the single one of the submission to the people of the State of the question whether they would revise their fundamental law. Its members passed laws which were signed by the governor, construed by the courts, and obeyed by the people. They elected a United States Senator, who was received without question, and now occupies a seat in that body equally with the Sena- tors from Ohio or the Senators from Massachusetts. There is a gen- eral and continuous recognition of it as the Legislature of Arkansas. It discharged all the functions of such a body, and its right to do so was never otherwise called in question. No power can now examine its organization or question the validity of its action. There can be no question, therefore, as to the validity of the act of Mr. Baxter as governor of the State of Arkansas, calling the extraor- dinary session of the Legislature in March, 1874, and there can be no question as to the validity of the act of that Legislature sub- mitting the matter of the formation of a new constitution to a vote of the people. I come now to consider what might be regarded as the most impor- tant objection to the validity of the constitution framed by the con- vention oi'ganized in the manner I have indicated, were that question a new one, and had it not already been settled by the decisions of the courts and the usages of the States for a period of more than a half century. It is objected that the constitution of the State could neither be altered, amended, nor revised, except in the manner expressly pre- scribed in the then existing constitution, and that consequently the mode adopted for its revision in this instance was revolutionary and void. Article 13 of the constitution of 18(58 provides that " amend- ments to this constitution may be projjosed in either house of the General Assembly, and if the same shall be agreed to by a ma- jority of the members elected to each of the two houses, such proposed amendment shall be entered on their journals, with the yeas and nays taken thereon, and referred to the Legislature to be chosen at the next general election, and shall be published as provided by law for three months previous to the time of making such choice. If in the Genei'al Assembly so next chosen as aforesaid such projjosed amend- ment or amendments shall be agreed to by a majority of all the mem- bers elected to each house, then it shall be the duty of the General Assembly to submit such jiroposed amendment or amendments to the people, in such manner and at such time as the General Assembly shall provide. And if the people shall approve and ratify such amend- ment or amendments by a majority of the electors qualified to vote for the members of the General Assembly voting thereon, such amend- ment or amendments shall become a part of the constitution of this State." This constitution is silent as to any other method of amend- ment, alteration, or revision ; and it is claimed by the enemies of the new constitution that no other method could therefore be adopted, on the principle of the maxim e.qyresnio unius est exclusio altenus. But the courts have always held that this maxim is not applicable to the provisions of a constitution, and applies rather to deeds and contracts between private individuals. 16 Sovereign riglits cauuot be disposed of in tins way. The will of the people cannot be thus hampered in an instrument of limitations. It is contrary to the whole theory of the American system of govern- ment. The specific mode set forth in the Constitution for its amend- ment is permissive merely, and not mandatory or exclusive. A rea- sonable construction of the thirteenth article would be that it was intended to be coutined to changes which are simjile or formal, of small importance and few in number, and that it was not intended as a method for a general revision, or even as a method for effecting single, important, and radical changes in the fundamental law of the State. Notwithstanding the presence of a specific mode of amend- ment in the constitution of any State, the power is still inherent in the people to amend and revise it, through the medium of a constitu- tional convention. That this power exists and abides with the peo- ple of any State, without an express affirmation of it in their fun- damental law, is a principle as well established by the decisions of the courts and the law and usages of the country as any other prin- ciple of our Government. Indeed, it is a fundamental jirinciple. Says Mr. Webster : The people are the source of all political power. Says Mr. Justice McLean : The theory of our political system is that the ultimate sovereignty is in the peojile, from' whom springs all legitimate authority. (1 McLean, 347.) And again : The States are equal, inasmiicli as each has hy its own voluntary will estab- lislied its own government and has the power to alter it. This is the principle ujion wliicli State governments are estalulished, and consequently they all stand upon an equal footing. Tliey have the same basis, have been framed according to the will of the people, and niay be changed at their discretion. (1 McLean, 348.) The same principle is directly affirmed in the first section of the bill of rights of the constitution of Ai'kansas of 1868, in these words : All political power is inherent in the people. Government is instituted for the pi-otection, security, and benefit of the peoi)le, and they have the right to alter or reform the same whenever the public good may require it. It being impossible, however, for the people to meet in one place and act without organization, and this power to alter and reform their government being inherent, the question arises, how can they act to this end ? To this I answer that the method adopted by the usage of the States almost from the beginning of the Government is that of the constitutional convention, convoked and assembled by the call of the people through the agency of the Legislatiu-e. Says Mr. Webster again : Wliim in the course of events it becomes necessaiy to ascertain the will of the people on a new exigency or a lunv state of things or of opinion, tlie legislative power jirovides for that ascertainment by an ordinary act of legislation. Mr. Cooley, in his able work on Constitutional Limitations, (page 30,) lays down these two propositions as settled principles of Ameri- can constitutional law: 1. In the original States and all others sub8ec(uently admitted to the Union the power to amend or levise their constitutions residesin'the great body of the ])eo])le as an organized tioily-jiolitic, wlio, being vested with ultimate sovereignty and tlie source of all Slate authority, have powi'r to control and alter tlii^ law which they have made at tlieir will. I'.ut the people in the legal sense nuist be understood to be those who tiy the existing (•oustituti