The citizens of Louisiana have perceived with satisfaction that the people of the sister States are not unconcerned spectators of the events now transpiring within her limits, and of which it is probable no parallel can be found in the history of this or any other country. As these events were entirely brought about by the agency of officers, civil and military, of the General Government, the citizens of Louisiana, not doubting that the action of the Executive, at least, in reference to them, was the result of misapprehension of the facts, determined to adopt prompt measures for the correction of the error. At a meeting held for that purpose, representing (we may safely say) a large preponderance of the moral worth, intelligence, and wealth of the city of New Orleans, a committee of one hundred gentlemen was appointed, with instructions to proceed immediately to Washington to lay the facts before the several departments of the Government, and to solicit their aid in repairing the gross wrong which had been done and in restoring to the people the right of self-government which had been wrested from them by the most patent usurpation.
The undersigned form a part of that committee. On our arrival here we found so much misapprehension existing — even among those who are usually well informed — in regard p2to the origin and history of this disturbance, that we determined to publish a brief narrative of the facts.
The parties engaged in these proceedings, aware that if the facts were properly understood they would admit of no defense, now seek to belittle and conceal the question at issue, and to treat a conspiracy to overthrow the government of the State as a mere struggle for political ascendancy between Governor Warmoth and Mr. Kellogg. They allege that the former was endeavoring by some trickery or legerdemain to cheat the latter out of his election, and that the object of their proceedings was simply to frustrate this attempt. They have sedulously sought to produce the impression upon the public mind that this committee was composed of mere allies and agents of Governor Warmoth. We repel this insinuation as utterly false and unwarranted. We are not the representatives of any personal or party interest whatever. Governor Warmoth was not a candidate for any office whatsoever at the recent election, nor have we, directly or indirectly, any connection or affiliation with him. So far as his past career is concerned, there are few if any members of this committee who have not been among his most pronounced opponents; while in those measures of his administration for which he has been most loudly denounced, he had for his advisers, associates, and coadjutors, the very men who now assail him, including especially Pinchback, Antoine, Herron, and numerous others whose names figure most conspicuously in these proceedings. In reply to the other insinuations indicated above, we declare that we are no parties to and have no knowledge of any political trickery intended to defeat the true voice of the people; that we do not believe any such existed, and that we would not be here unless we could proclaim conscientiously our conviction that the men who have been foisted into the offices of the State have been not merely irregularly and unlawfully installed, but were not elected by the people, and were not and are not the choice of a majority of the voting population of Louisiana. We have not asked the Government to admit this on our simple assertion. All we have asked is p3that it should make a candid and impartial investigation of the facts.
With this preface, we now submit the following statement:
First. There was a general election held in Louisiana on the 4th day of November last for the election of a Governor, Lieutenant Governor, members of the General Assembly, and other State and Federal officers. At this election William Pitt Kellogg, a member of the Senate of the United States, and C. C. Antoine, Collector of the port of Shreveport, were candidates for the offices of Governor and Lieutenant Governor, and were opposed by John McEnery and Davidson B. Penn. The present Governor, Warmoth, was not a candidate for re-election.
Second. This election was conducted without riot, disturbance, or violence, and the number of votes cast was unusually large.1 The returns of the election were made to the board appointed for the purpose. This board was composed, under the law, of the Governor (Warmoth), the Lieutenant Governor, the Secretary of State, and two other persons named in the law, viz: John Lynch and Thomas C. Anderson. The office of Secretary of State was filled at the time by Mr. F. J. Herron, who had been appointed by Governor Warmoth to fill the vacancy caused by the removal, several months before, of George E. Bovee, the legality of which removal and appointment was then in contest before the State courts. The board met, and it was resolved that Anderson and Pinchback were disqualified by reason of their being candidates for office. Warmoth then removed Herron (whom he had appointed) from the office of Secretary of State as a defaulter, and appointed and commissioned Wharton in his stead.
We have no reason to believe that the action of Governor Warmoth in the removal of Herron was based upon a desire to commit a fraud, for under the returns there was no necessity for fraud. It was prompted by his discovery of a p4plot between Herron and Lynch to falsify the returns and defeat the will of the people. This is manifest from the fact, developed in the evidence before the court, that Herron, anticipating the thwarting of his scheme, had several days before ordered a duplicate of the seal of State to be engraved, by which means he hoped to preserve the insignia of office in the event of his removal by the Governor.
Omitting further details, Warmoth and Wharton on the one hand, assuming to be a majority of the board, and in the presence of Lynch, proceeded to elect Hatch and Da Ponteº to fill the vacancies caused by the withdrawal of Pinchback and Anderson,2 while Lynch and Herron afterward assembled and, under the same assumption, elected Longstreet and Hawkins. Thus there came to be two bodies — each claiming to be the returning board — one presided over by Governor Warmoth, the highest executive officer of the State and under the law the presiding officer of the board, and which had possession of all the election returns and everything necessary to ascertain the result; while the other consisted of Lynch, the removed Secretary of State, Herron, and their two appointees. Afterwards the State Supreme Court decided that the removal of Bovee and the original appointment of Herron were illegal, and Bovee was reinstated in his office. Whatever may be said of these contesting boards, it is clear that the courts of the United States had no semblance of authority to decide between their conflicting claims to office.
Third. After it had become probable that the two candidates, William Pitt Kellogg and C. C. Antoine, had been defeated, and that their opponents would be declared elected, they respectively filed bills in the circuit court of the United States for the district of Louisiana for injunction and relief. The Governor of the State, the members of the canvassing board, other citizens of the State connected with the promulgation of the returns, and certain persons elected or claiming to have been elected to the Legislature and to p5the Governship,º were made defendants in one or other of these suits. The cause of complaint was, that they severally apprehended that they would be deprived of the offices for which they had been candidates. They claimed to have had the majority of votes at the election, and that there had been 10,000 voters prevented from voting because of their complexion and previous state of servitude, whose votes they would have received. The bill of Kellogg professed to be for the preservation and perpetuation of the evidence of the election, and to have reference to the support of a suit he might have to bring to recover the office. Antoine's suit was similar in the claims of title, and had reference in its prayers for relief to the organization of the General Assembly at the meeting called, in the proclamation of the Governor, for the 9th day of December, 1872.
Fourth. The parties to these suits were all citizens of the State of Louisiana. The object of the suits was to assert title to offices of the State in advance of any decision or announcement by any board of any person as elected, and to determine the persons to make the decision and the announcement, by the judicial authority of the Circuit Court of the United States. Pending the suits,3 an ex parte and private order was made in the suit of Kellogg, declaring that the defendant, H. C. Warmoth, the Governor, had, in violation of the restraining order of the court, issued a proclamation and published the returns of certain persons claiming to be the board of returning officers, and proceeding as follows:
"Now, therefore, to prevent the further obstruction of the proceedings in this cause, and further to prevent the violation of the orders of this court, and the imminent danger of disturbing the public peace, it is hereby ordered that the Marshal of the United States for the district of Louisianakkk The decision of the court upon the question of jurisdiction was not rendered until 11½ o'clock on the morning of the 6th of December, whereas the order of Judge Durell, directing the marshal to take possession of the State House, was issued at a late hour of the night before, under the most peculiar circumstances, and executed before the dawn of day. p6shall forthwith take possession of the building known as the Mechanics Institute, and occupied as a State House for the assembling of the Legislature therein, in the City of New Orleans, and hold the same subject to the further order of this court, and meanwhile to prevent all unlawful assemblage therein under the guise or pretext of authority claimed by virtue of pretended canvass and returns made by said returning officers in contempt and violation of said restraining order; but the Marshal is directed to allow the ingress and egress to and from the public offices in said building of persons entitled to the same."
Fifth. The interlocutory and ex parte order in the suit of Antoine, the candidate for Lieutenant Governor, seems to have been made as the complement to the order above quoted in the suit of Kellogg, which directed the occupation of the State Capitol by the Marshal, with directions to prohibit what is termed in the order "an unlawful assemblage," while the same Marshal is directed to allow the ingress and egress of persons whom he might determine to be entitled to such a privilege. This order, in the case of Antoine, is comprehensive and explicit. None can mistake its import or its object. It provided:
First. That the Governor of the State be enjoined and restrained from examining the election returns or counting votes, except in the presence of officers designated in these orders, and from controlling, interfering with, or attempting to interfere with, the organization of the State Legislature, and from doing any act, or from giving any order or direction, or making any request which may directly or indirectly prevent or hinder any person from being present and taking part in the organization of the Senate on the 9th of December, or at any future day, who may be returned as a member thereof by a board composed of H. C. Warmoth, George E. Bovee, James Longstreet, Jacob Hawkins, and John Lynch, and whose name has been transmitted to Charles Merritt, Secretary of the Senate, by George E. Bovee, Secretary of State.
Second. That 20 named persons, who had been candidates p7for the office of Senator in the State Senate, and who were supposed to have been elected, and had been declared to be so, be enjoined and restrained from participating in any manner in the organization of the Senate, or doing any act about that organization, unless their names should appear on Bovee's list of names of members of the Senate, as transmitted to the Secretary of the Senate, Charles Merritt.
Third. About 100 persons whose names are given, and who were supposed to have been elected to the House of Representatives of the General Assembly, and had been declared to be so elected, were similarly enjoined from participating in the organization of the House of Representatives, or from doing any act or casting any vote, unless their names were on Bovee's list of members.
Fourth. The clerks of the Senate and of the House of Representatives were severally enjoined from placing on any list, or announcing, or recognizing, or designating as a member, prior to or during the organization of the respective Houses, any person whose name was not placed upon Bovee's list.
Fifth. The Secretary of State (Bovee) was enjoined from receiving any returns of the election of State officers, or of members of the General Assembly, excepting such as should be filed in his office by the board composed of Warmoth, Longstreet, Hawkins, Lynch, and Bovee.
Sixth. The Chief of the Metropolitan Police, and all of its members, numbering about 300, and the board, were enjoined from interfering with the organization of the General Assembly, and from preventing the persons on Bovee's list from entering into the halls of the Assembly.
Seventh. The persons composing the board recognized by the Governor were enjoined from acting as a canvassing board, and from declaring and publishing any calculation, statement, or proclamation of the results, or granting certificates of election, or statements tending to show any right to office growing out of ballots cast at said election.
The Marshal, assisted by a detachment from the Army of the United States, under these orders took possession of the p8State Capitol, and held it on the 9th of December, when the General Assembly was to convene under the proclamation of the Governor. The egress and ingress of persons were regulated according to this order. A person named Pinchback took possession of the chair of the Senate, and directed its organization. He had been a Senator for a term that had expired. While a Senator he had been President of the Senate, and in virtue of such presidency, under the law, had acted as Lieutenant Governor after the death of Dunn, the Lieutenant Governor chosen in 1868; but at the time of these occurrences he was not merely functus officio as President of the Senate, but was no longer a Senator, and had no title or color of title to act as Lieutenant Governor, or to take any part in the organization of the Senate.4 The House of Representatives was also organized, the U. S. Postmaster at New Orleans being its Speaker. The certificates of Bovee under the injunction were taken as conclusive evidence of membership. The House passed resolutions for the impeachment of the Governor, and thus Pinchback felt at liberty to assume the title of Governor. Two district courts were abolished, and a new court, called the Superior Court,5 was established, with extraordinary powers, and, among others, exclusive jurisdiction to determine title to office, and Mr. Hawkins, one of the members of the Bovee board, which had made the election returns, was made judge. Steps having been taken by the Governor, in his official capacity, to secure a revision, by the Supreme Court of the United States, of the chancery orders of the United States Circuit Court, these bodies forthwith adopted resolutions to dismiss these proceedings.6 The militia was placed under the command of General James Longstreet, another member of the Bovee board, and the arsenals were taken possession of by the aid of United States troops.
It has been supposed that no amount of professional energy and skill was adequate to make a coup de main in a chancery cause. This statement shows that a civil revolution p9was commenced, carried on, and accomplished within a lunar month, under the orders of a chancery court, in suits over which the court had no jurisdiction at all, whether of parties or subject-matter.7 The Circuit Court of the United States is a court of limited jurisdiction, and without authority to entertain civil suits between citizens of the same State, unless the case arises directly under the Constitution and laws of the United States and jurisdiction is vested by act of Congress. Congress has no power to confer jurisdiction in any other case between such citizens. It has no authority to give jurisdiction of a suit of a citizen of the State against the State. Under the act of Congress of May 31, 1870, upon a single condition of facts, a citizen of a State may maintain a suit for an office of a State in the courts of the United States, but the State Legislature is specially excepted from the operation of this act in the same clause that excepts the office of members of Congress and Presidential electors.8 The ex parte preliminary order in the case of Antoine is as explicit a determination of the title of the members of the Legislature, and furnishes as complete a writ of possession, as could be devised. The organization of the Legislature is effected by a simple chancery order.
Had there been resistance to the execution of-these orders, and had riot and bloodshed followed, upon whom would have fallen the responsibility? By whose forbearance was it that a bloody catastrophe has not been exhibited as a scandal to the land? It sometimes happens that the executive department is tolerated, excused, or justified in acts of administration which exceed its legal powers. The arguments derived from the terms "State necessity," "public welfare," or "convenience," have here a soothing influence; but judiciary action is not entitled to any benefit from such arguments. The damage which ensues from the employment of judiciary power to accomplish other than judicial acts of administration cannot be calculated, and it is p10impossible to justify a court in determining that to be legal which is merely desirable, or that to be right which is only profitable. The order in the Kellogg case was ex parte. It was placed in the hands of the Marshal without notice to the parties. It proceeds for an alleged contempt by no legal procedure usual in matters of the sort, and we are not aware of any imminence of danger to the public peace which did or could justify the seizure of the State Capitol in a chancery suit between Kellogg and a canvassing board, a suit professedly brought to perpetuate testimony.
The case of Antoine displays with even more distinctness than that of Kellogg the use that has been made of judicial orders to accomplish results of which the judiciary had no cognizance. Antoine was a candidate for Lieutenant Governor, and would have been entitled to his office in January next had he been elected. With a disputed title, a month in advance, he filed this bill and obtained the order we have cited, placing under interdict the Governor, the Secretary of State, the members elect of both branches of the General Assembly, the board and all the officers and men of the police, and the members of two canvassing boards; and upon this ex parte order the organization of the General Assembly, at a time when he (Antoine) had no share in any of its sittings, was regulated and effected.
Since the meeting in New Orleans under which the committee was appointed, we have been met with the suggestion that these orders and acts are facts accomplished, and that their revocation or rescission would not restore the status quo, and that our complaints, therefore, are unreasonable. If the opinion we have be correct, such a circumstance ought not to affect our action or conduct. When the King of Great Britain established arbitrarily a government in one of the colonies, the remaining colonies took the alarm, lest it might serve as a precedent as well as an instrument to establish such governments elsewhere. Besides, men are less patient under wrongful orders and acts of a judiciary tribunal than even of violence from other sources of authority. A government which rests for its organization upon an p11illegal judicial order, executed by a marshal with companies of soldiers, does not command as much respect or authority as if the judicial appendages had been dispensed with, and the army had set up the government with a strong and usurping hand.
The committee take the liberty to say that they have had no connection with these suits as parties or attorneys; neither do they claim any of the offices in dispute. They have not heretofore been concerned in the controversies among the political classes which have endangered the peace of, and brought scandal upon, the State. They affirm that, during the last four years, there has not been good government in Louisiana. There has been extravagance, prodigality, dishonesty, and waste in the public expenditures. The public debt has been enormously increased, with but little corresponding benefit. The credit of the State has been given to speculating corporations, for personal aims. The taxes on property have assumed such proportions that they might appropriately be called rents paid by the proprietors to the State for its occupation and use. The taxes upon business oppress the commercial and laboring classes. The laws to control elections, corporations, and public institutions stimulate these excesses of office-holders, and the consequence is universal depression and discontent. The State needs an honest, faithful, and responsible government, conducted to attain public objects, and not to enrich its members or to perpetuate their power. There was an earnest effort to obtain such a government at the last election, but a political conspiracy has unfortunately defeated it.
We affirm, without fear of contradiction, that the foregoing statement exhibits on the part of the United States court the most high-handed usurpation of jurisdiction and authority of which the annals of jurisprudence afford any example.9 The action of the returning board recognized and vested with all its powers by this court, has been p12equally unprecedented. Without any official returns before them, without any of the official data on which alone their action could have been rightfully based, they have presumed to proclaim the results of the election. The declaration by them of the votes cast in the different parishes is as purely fanciful as if no election whatever had been held.
They have arbitrarily reduced and increased the votes on one side or the other in different parishes to suit their purposes. In several parishes, while retaining or even adding to the votes cast for their candidates, they have simply annihilated or stricken out entirely the votes cast for their opponents. In other parishes they have exactly reversed the returns, giving to their candidates the majority which had really been returned for their opponents.10 They have not pretended to furnish the public with any explanation of the basis on which they proceeded, or the theory on which they acted. Their whole conduct is without any kind of reasonable explanation.
We submit to the people of the United States that such proceedings reach a point at which the whole theory of popular government is reversed and overthrown. The means by which such results have been reached are enough to startle the public mind, but the results themselves are not less appalling. Aside from the general offices of the State, we find the Legislature of the State delivered over into the hands of men who were not elected, and who are utterly unfit for positions of such responsibility. As originally composed at its organization, it comprised sixty-eight persons of color, most of them totally uneducated, with a very small minority of whites. Since that time they have expelled members whose seats were uncontested. They have unseated conservative members returned elected by their own board, and seated their defeated opponents, on the simple ground that the former had not appeared to claim their seats.11 The result is that, originally bad as the Legislature was, it makes itself worse day by day, and the p13prospect is that soon the conservative element of the State will have no representation whatever. To those who flattered themselves with the hope that Mr. Kellogg would not willingly abet any scheme of outrageous misgovernment, it is now apparent that, even supposing this to be true, the power of restraint has passed entirely beyond his control, and that, should he attempt to thwart the schemes of this Legislature, his own impeachment would be a probable event of the future.
In conclusion, we would state that we have attempted to perform the duties of our mission in the purest non-partisan spirit, and that we have not sought to furnish capital to any political party or to excite popular clamor in the interests of any faction. We have laid our case before the President and his Attorney General, and we willingly testify that we have been courteously received and patiently listened to. While they have refused the specific measures of relief for which we applied, they have given reasons for such refusal in no manner implying any indisposition to see justice done.
They have referred us to Congress, and we feel assured that we shall have the immediate sanction of the President so far as we invite an impartial investigation of the facts of our case, and that we shall have his co-operation in any measures of relief which Congress may adopt after such investigation. The people of Louisiana, ignoring party, are conscious of having made an honorable effort to place in office men of tried probity. They seek justice, not generosity. They ask for a calm, impartial examination into the recent extraordinary occurrences within their borders in order that the truth may be known, and that there may be a speedy correction of the dangerous evils now threatening the very life of their State.
Washington, D. C., Dec. 23, 1872.
|J. A. Campbell,||John Fairbanks,|
|J. Aldigé,||C. E. Fenner,|
|August Bohn,||E. B. Wheelock,|
|Joseph Bowling,||A. B. Griswold,|
|p14N. Barnett,||G. Kohn,|
|A. Chiapella,||H. McCloskey,|
|J. S. Copes,||G. W. Nott,|
|H. W. Conner,||H. V. Ogden,|
|H. D. Coleman,||W. S. Pike,|
|John C. Potts,||F. A. Haber,|
|John F. Pollock,||H. Gardes,|
|J. Tuyès,||P. M. Baker,|
|James Wallace,||Albert C. Janin,|
|Walker Fearn,||S. Hernsheim,|
|D. C. Labatt,||T. H. Kennedy,|
|H. O. Seixas,||J. M. Scott,|
|J. W. Labouisse,||Al. Miltenberger,|
|D. West,||H. G. Darcy,|
|Richard Taylor,||Sella Martin,|
|Mayer Stern,||W. Marks,|
|R. Pugh,||C. M. Wilcox,|
|George W. Squires,||H. R. Cramer.|
3 The decision of the court upon the question of jurisdiction was not rendered until 11½ o'clock on the morning of the 6th of December, whereas the order of Judge Durell, directing the marshal to take possession of the State House, was issued at a late hour of the night before, under the most peculiar circumstances, and executed before the dawn of day.
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1872 Campbell Memorial
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