Campbell's Memorial (1872) • Appendix

The New Orleans Republican (the organ of the Radical Republican party), of the 19th of November, in an editorial article, admitted frankly and unequivocally that the election held on the 4th of that month was the fairest and most peaceable ever known in the State of Louisiana; that no negro had been deprived of his right to vote because of his color; that there had been every disposition to allow to him the unmolested enjoyment of his rights; and that complete conciliation existed between the two races.

The total vote in November last for Governor, exclusive of the three parishes of St. James, Terrebonne, and St. Tammany, from which irregular and informal returns only were received, amounted to 128,402. The total vote of the State in 1870 was only 106,542.

When the board met to‑day, Governor Warmoth, Acting Secretary of State Herron, and Senator John Lynch being present, the Governor, after the reading of the minutes, presented the certificate of Auditor Graham, to the effect that, Secretary of State Herron being a defaulter, he had been compelled by the constitution and laws to suspend him from the exercise of his functions, on charges which would be enumerated to the Senate. Accordingly Secretary of State Herron was requested to withdraw from the board, which he did. The Governor next presented the commission, and the evidence of his qualification for the office, of Colonel J. Wharton, as the successor of General Herron. Colonel Wharton was in the ante-room, and on being sent for promptly appeared and took his seat in the board.

Governor Warmoth then proposed the name of F. H. Hatch as a substitute for Lieutenant Governor Pinchback, which was adopted by the votes of Governor Warmoth and p16 Secretary of State Wharton, Senator Lynch voting "No." It was further moved that Durant Daponteº be elected in place of Senator Thomas Anderson. These nominations were adopted by the board, whereupon Senator Lynch retired. The board, being thus completed according to law, will proceed to its duties.

On Monday, November 9th, at the Mechanics' Institute, at the organization of the Senate, pursuant to the Governor's proclamation, it was desired by a majority of the holding-over Senators, and which majority were nearly all Republicans, that the names of those holding over, and of those returned by both boards, should first be called. These Senators, according to all law and precedent, would then determine who were entitled to seats in all cases of doubt or where no returns had been made by the Custom-house board. But this did not suit the purposes of the Custom-house party. Mr. Pinchback, who had called the Senate to order, refused to recognize any motion whatsoever, and ordered the calling of the roll according to the list prepared at the Custom-house. General McMillen, a staunch Republican, sprang to his feet, and objected to the arbitrary ruling and usurpation of Mr. Pinchback. The latter refused to hear him or to receive his protest. Other Republicans, General H. J. Campbell among the number, denounced Mr. Pinchback's action, and protested against his presiding over the Senate. Their efforts were useless. United States marshals and United States soldiers were on every hand, and their instructions from E. H. Durell, judge of the United States district court, were to obey the behests of Mr. Pinchback.

And this is the reason why objections were made to Mr. Pinchback's further presiding over the Senate. He was elected in 1868 Senator from the second district of New Orleans for a term of four years, which expired at the last election, when ex-Lieutenant Governor A. Voorhies was elected to succeed him. At the death of Lieutenant Governor Dunn, Senator Pinchback was elected President of the Senate, and thereby became Lieutenant Governor ex officio. At the regular session of 1872 Mr. Pinchback always claimed the right to vote as Senator, and did so vote, as the journal will show.

When ex-Governor M. Hahn resigned his office, and J. Madison Wells, Lieutenant Governor, became Governor in p17 his stead, Senator Louis Gastinel was chosen President of the Senate, and thereby became ex officio Lieutenant Governor. All acts thereafter passed during that term are signed "Louis Gastinel, ex officio Lieutenant Governor and President of the Senate." That was according to the law of 1865, which says that, when a vacancy shall occur in the office of Lieutenant Governor, "the Senate shall elect a President, who shall be Lieutenant Governor." This law has been copied verbatim in Ray's Revised Statutes, 1870. At the ensuing election Governor Wells was a candidate for re-election, and Judge A. Voorhies for Lieutenant Governor. Immediately after the election Governor Wells called a special session of the Legislature, to assemble at Mechanics' Institute, November 25, 1865. The Senate having been called to order by the President, Mr. Gastinel, Mr. Kenner objected to his presiding any further, as his term of office had expired, and his successor was present. Thereupon Mr. Victor Burthe, of Jefferson, was placed in the chair as President. On the 2d of December the votes for Governor and Lieutenant Governor were counted, and on the 4th Mr. Albert Voorhies was installed as Lieutenant Governor, thereby becoming President of the Senate.

There is a precedent: the case is precisely in point; the facts agree in every respect. The Senate is the sole judge of the qualifications of its members, and it has given a construction to a law which has been re-enacted since that construction of it. Judge Durell is without authority, even under the enforcement law, to create a Legislature or in any way control its organization. It is deemed proper that these facts and this precedent be spread abroad through every State, and the National Government be fully apprized that the man who has been recognized as "Acting Governor of Louisiana" is absolutely without right to hold such office.

An Act to establish an additional district court for the parish of Orleans; to define and limit the jurisdiction, and to determine the powers thereof; to provide for the transfer of certain cases now depending before certain other district courts for said parish to the court hereby created; to authorize the Governor to appoint a judge and a clerk for said court, and to provide a court room for said court; to abolish the Seventh and Eighth District Courts for the parish of Orleans, and to provide for the transfer of the records and suits in said Seventh and Eighth District Courts to other courts in said parish.

Section 1. Be it enacted by the Senate and House of Representatives of the State of Louisiana in General Assembly convened, p18 That there shall be, and is hereby established, an additional district court for the parish of Orleans, which shall be known and designated as the Superior District Court for the parish of Orleans.

Sec. 2. Be it further enacted, etc., That the Superior District Court hereby created shall have exclusive jurisdiction in and for the parish of Orleans, to issue writs of injunctions, mandamuses, quo warranto, and to entertain all proceedings, and to try all cases or actions in which the right to any office, State, parish, or municipal, is in any way involved.

Sec. 6. Be it further enacted, etc., That the offices of judge and clerk of the Superior District Court for the parish of Orleans, hereby established and organized, shall be deemed to be vacant as in case of original vacancy. The Governor shall at once fill such vacancies by appointment.

Sec. 7. Be it further enacted, etc., That the act of the General Assembly, approved March 16, 1870, entitled "An act to establish an additional district court for the parish of Orleans, to define the jurisdiction thereof, and to reorganize and determine the jurisdiction of the existing seven district courts for the Parish of Orleans," be and the same is hereby repealed, in so far as it establishes and organizes the Eighth District Court for the parish of Orleans; it being the intent and purpose of this act to abolish the said Eighth District Court for the parish of Orleans, and the said Eighth District Court for the parish of Orleans be and is hereby abolished.

Sec. 8. Be it further enacted, etc., That the Seventh District Court for the parish of Orleans be and is hereby abolished.

Sec. 9. Be it further enacted, etc., That all laws or parts of laws in conflict with this act be and the same are hereby repealed so far as they are in conflict, and this act shall have force and effect from and after its passage.

(Signed) A. B. Harris, President of the Senate and Acting Lieutenant Governor.

(Signed) P. B. S. Pinchback, Lieutenant Governor, Acting Governor of Louisiana.

An Act relative to the office of Attorney General, and directing the discontinuance of certain proceedings before the Supreme Court of the United States.

Section 1. Be it enacted by the Senate and House of Representatives of the State of Louisiana in General Assembly convened: Whereas the Hon. A. P. Field has been duly promulgated as having been elected to the office of Attorney General of this State; [. . .] and whereas other persons are claiming to represent the State of Louisiana in judicial proceedings: That the said A. P. Field, and his legal successors, and those acting under him or them, be alone authorized to institute or continue in the name of the State of Louisiana any suit or judicial proceeding, and all other persons are prohibited from doing the same. [. . .]

Sec. 2. Be it further enacted, etc., That the said A. P. Field is authorized and instructed to discontinue any and all proceedings instituted in the Supreme Court of the United States by H. N. Ogden or any other person in the name of the said State.

Sec. 3. Be it further enacted, etc., That this act shall take effect from and after its passage.

(Signed) A. B. Harris, President of the Senate and Acting Lieutenant Governor.

(Signed) P. B. S. Pinchback, Lieutenant Governor and Acting Governor of Louisiana.

Art. 52. No member of Congress or any person holding office under the United States Government shall be eligible to the office of Governor or Lieutenant Governor. p20

Art. 4, Sec. 21. No person holding any lucrative office under the United States, or any other Power, shall be eligible to any civil office of profit under this State.

The court, consisting of Chief Justice Stephen J. Field, and Associate Justices Baldwin and Cope, say:

"The counsel for the appellant contends that the true meaning of the constitution is, that the person holding the federal office described in the 21st section is forbidden to take a civil State office while so holding the other; but that he is capable of receiving votes cast for him, so as to give him a right to take the State office upon or after resigning the federal office. But we think the plain meaning of the words quoted is the opposite of this construction. The language is not that a federal officer shall not hold a State office while he is such federal officer, but that he shall not, while in such federal office, be eligible to the State office. We understand the word 'eligible' to mean capable of being chosen — the subject of selection or choice. The people in this case were clothed with this power of choice; their selection of the candidate gave him all the claim to the office which he has; his title to the office comes from their designation of him as sheriff. But they could not designate or choose a man not eligible, i.e., not capable of being selected. They might select any man they chose, subject only to this exception, that the man they selected was capable of taking what they had the power to give. We do not see how the fact that he became capable of taking the office after they had exhausted their power can avail the appellant. If he was not eligible at the time the votes were cast for him, the election failed. We do not see how it can be argued, that by the act of the candidate the votes which, when cast, were ineffectual, because not given for a qualified candidate, became effectual to elect him to office. Can it be contended, that if Grow had not been a citizen of the county or of the State at the time of the election, or had been an alien at that time, that the bare fact that he did so become a citizen at the time he qualified would entitle him to the office? Or suppose a man, when elected, under sentence and conviction p21 for crime — if such a case can be supposed — would a pardon before qualification give him a right to hold the office? When the words of the constitution are plain, we cannot go into curious speculation of the policy they meant to declare. It may, however, have been a part of the policy of the provision quoted to prevent the employment of federal patronage in a State election."

Sec. 23. And be it further enacted, That whenever any person shall be defeated or deprived of his election to any office, except elector of President or Vice President, Representative or Delegate in Congress, or member of a State Legislature, by reason of the denial to any citizen or citizens who shall offer to vote of the right to vote on account of race, color, or previous condition of servitude, his right to hold and enjoy such office, and the emoluments thereof, shall not be impaired by such denial; and such person may bring any appropriate suit or proceeding to recover possession of such office; and in cases where it shall appear that the sole question touching the title to such office arises out of the denial of the right to vote to citizens who so offered to vote on account of race, color, or previous condition of servitude, such suit or proceeding may be instituted in the circuit or district court of the United States of the circuit or district in which such person resides. And said circuit or district court shall have, concurrently with the State courts, jurisdiction thereof, so far as to determine the rights of the parties to such office by reason of the denial of the right guaranteed by the fifteenth article of amendment to the Constitution of the United States, and secured by this act. (Stat. at Large, Vol. XVI, p. 146.)

By the decree or, rather, the interlocutory order of a United States district judge, it is attempted, in spite of the overwhelming expression of the will of the people of the State, to establish over the State of Louisiana a government consisting of a United States Senator for Governor, the Collector of a Port as the Lieutenant Governor, the United States Treasurer for State Auditor, a Surveyor of the Port for p22 President of the Senate, the Postmaster of New Orleans for Speaker of the House, a Deputy Collector for Chairman of the Finance Committee of the Legislature, and a Legislature composed principally of defeated candidates, most of whom are in the employ and pay of the Federal Government.

It is scarcely necessary to state what is so well-known to all of you, that the election recently held was fairly and honestly conducted under the laws of the State, and that the registration and the vote were both unusually full, the latter being the largest ever cast in Louisiana.

The total vote for Governor, exclusive of the three parishes of St. James, Terrebonne, and St. Tammany, from which irregular and informal returns were received, amounted to 128,402, an increase of 21,860 on the vote of 1870. The Republican vote, estimating and adding the three omitted parishes at the same vote cast in 1870 (3,734), is only 2,461 below the vote cast for the Republican State ticket at the last election, and it is well known that thousands of Republican voters throughout the State, at this election, supported the Fusion ticket. The returns made by the State officers were in due form, and these returns are the only official evidence in existence of the vote at the late election. The pretense of the agents selected by Senator Kellogg to promulgate an official falsification of the result, that they have made a compilation of the votes, is only one of the bold and audacious falsehoods by which every step of the conspirators has been marked. Those persons had no returns, no documents, no evidence of any kind in their possession, except the statements made up by themselves and their allies for the consummation of their fraudulent purposes. A comparison of the tabulated statement published by them with the genuine returns, as previously published, shows that they did their work in flagrant defiance of decency, and without even an attempt to conceal their fraud and falsehood from the eyes of the public. The bill filed by Senator Kellogg alleged simply a deficiency in his returned vote of about 10,000, due to an alleged suppression of a portion of votes actually cast and a refusal to register or to receive another portion. The alleged suppression was totally false, and was supported by no evidence whatever — not even the p23 simulated cross-mark affidavits with which the conspirators so liberally provided themselves in advance. The affidavits filed by them amounted to about 4,000 in number, according to their own statement. If they had simply added this number to the total, it would have given Senator Kellogg 64,233 votes, against 68,169 for McEnery, not enough to show an apparent election, even including the vote for the three omitted parishes. They therefore, without returns, without testimony of any kind, without even adopting and following any rational theory of computation, added the enormous number of 12,675 to Senator Kellogg's vote, and as if to still further insult the intelligence of the public, and still more flagrantly expose their own falsehood and wickedness, they deliberately struck off 14,140 from the vote cast for Mr. McEnery. The returns from the parish of Bossier were, for McEnery 953, for Kellogg 555. They report for Kellogg 1,159, for McEnery none. The vote of Natchitochesº was for McEnery 1,250, for Kellogg 550. They report for Kellogg 1,206, for McEnery none. In Assumption they have added 504 to Kellogg's vote, and subtracted 454 from McEnery. In Avoyelles they add 525 to Kellogg's vote, and subtract 454 from McEnery's. In East Baton Rouge they add 1,343 to Kellogg's vote, and subtract 727 from McEnery's. In De Soto they add 578 to Kellogg's vote, and subtract 660 from McEnery's; in Plaquemine they add 1,129 to Kellogg's vote; in St. Landry they add 545 to Kellogg's vote, and subtract 555 from McEnery's; in Vernon, where McEnery has 669 votes, they allow him 112; in Winn, where McEnery has 575 votes, they allow him 127; in Washington, where McEnery has 453 votes, they allow him 194; in St. Mary they add 300 to Kellogg's vote, and subtract 500 from McEnery's; in Union, where McEnery has 1,418 votes, they allow him 460; in Orleans they strike between 3,000 and 4,000 from McEnery's vote; and in almost every parish they have made changes equally capricious and irrational, and returns equally false and fraudulent; and these are the men who based their suit at law upon the charge that the Governor and the returning officers intended to falsify, to mutilate, and to destroy the election returns. These returns are in existence; they retain all the integrity of their original form. They are unmutilated and unfalsified; they constitute the only evidence of the late election that any law recognizes, or that any honest judicial tribunal would accept. They have never been in the hands of the conspirators, and yet these persons, pretending p24 to act as public officials, have promulgated results so monstrously at variance with the truth, that they seem to court the notoriety of falsehood and to revel in the publicity of fraud.

"House. — The House met at 12 m. Seventy members present. Mr. Sauer in the chair.

Whereas the Committee on Elections and Qualifications of this House have, after due investigation, reported favorably upon the applications of W. H. Decker and Radford R. Davis, Representatives from the Tenth Representative District, parish of Orleans;

Whereas the said W. H. Decker and Radford R. Davis are the only applicants for seats as Representatives elect to this House;

And whereas the people of the Tenth and Eleventh Wards of the parish of Orleans, comprising the said Tenth Representative District, are now without representation or voice in the Legislature of this State:

Resolved, That in consonance with the report of the Committee on Elections of this House, and in view of the fact that the said Decker and Davis are the only applicants for seats in this body, that the said Decker and Davis be and they are hereby admitted to seats in this House, subject to any contest which may be hereafter made."

The members elect denied seats by this resolution are Messrs. James McConnell and James B. Eustis, who were elected by overwhelming majorities, and whose election was admitted by the Custom-house board, but who absented themselves from the Legislature because of the illegality of its proceedings.

The same action was taken by the Senate in reference to Messrs. McMillen and Campbell.

The following resolution, offered by Mr. Bryant, of East Baton Rouge, was also adopted:

"Whereas the legal returning board, composed of Messrs. Lynch, Longstreet, Bovee, and Hawkins, have carefully examined, p25 counted, and officially promulgated the election returns of members of the House of Representatives, elected at a general election held on the 4th day of November, 1872: therefore, be it

Resolved, That the members so returned are hereby confirmed as the legal members of the House of Representatives of the State of Louisiana."

The undersigned representatives of houses in the North doing business with the South, who have been visiting New Orleans for many years past and at present, and are thoroughly conversant with the political feelings of the people of this section, wish to express our opinion at this critical juncture of affairs.

Visiting New Orleans at a season when the city is usually full of activity and life, we find every channel of trade paralyzed, the State House occupied by troops, the officers of the State threatened and intimidated, and the people cast into the deepest gloom by the arbitrary usurpation of power and place by political adventurers, backed by a United States judge, who has called in the assistance of United States troops to execute his decrees.

After an election, which we believe to have been conducted as fairly and honestly as any in which the American people ever participated, finding themselves beaten by a large majority of the votes of the citizens of this city and State, this unscrupulous and irresponsible body of men have resorted to trickery and violence to defeat the execution of the will of the people as thus expressed.

Believing this action the greatest outrage ever attempted to be carried out in our country, and one which tends directly to the overthrow of the liberties of the people, and to destroying the power and sacredness of the ballot-box, we hereby enter our solemn protest against the high-handed action, and appeal to our fellow-citizens of the North to unite in protesting to Congress and the President, to the end that the legally elected officers of the State may be installed in office, and the people of the community supported in their efforts to exercise the right of franchise, that they may redeem their State from the bankruptcy and ruin with which it is now threatened through the action of these nameless adventurers.

Charles A. Griffith, representing A. D. Hopping & p26 Wilson, 218 and 220 Washington street, New York.

Albert Ingard, Rubber Clothing Company, New York, Chicago, St. Louis, and San Francisco.

Patrick J. McPhillips, W. H. Horstmann & Sons, New York, Philadelphia, and Paris, France.

J. G. Case, General Superintendent Champion Cotton Gin Company, 102 State street, Boston, Mass.

John G. Irish, Charles Lippincott & Co., 914 and 916 Filbert street, Philadelphia.

Is this a Republic, and is Louisiana one of the United States? — Either this is a republic or it is not. Either the States manage their own local affairs or they do not. Whatever appearances may denote, we believe we are not rash in assuming that the people of the United States do live in a republic; further, we boldly quote the Constitution and decisions of the Supreme Court to prove it incumbent upon the United States "to guarantee to every State in the Union a republican form of government." In other words, every State is a republic within a republic. Now, as our creed in the late civil war affirmed secession to be unlawful, as we proved the right by our might on the battle-field, Louisiana is in the Union, because she never was out of it, and is entitled to a republican form of government, because she is a State. Hence it follows that the imperial policy being pursued towards her is an unwarrantable insult to a conquered, law-abiding, free (?) people. Ignorance is a two-edged sword. Negroes demoralized by designing leaders are no better than low whites demoralized; and what if a legislature like that of Louisiana should become uncontrollable? Already its members are loud in their threats against their defeated opponents. May it not be possible for them to turn upon their white instigators? We say this not because negroes are black, but because these particular negroes are from necessity totally uneducated, and have been played upon ever since they had political power.

Undoubtedly it was a mistake in the Liberal Republicans of Louisiana to dally with Warmoth in the late election. [. . .] In spite of their aversion they accepted p29 his aid; but his is the power of the boomerang, and returns to delay, if not to destroy, reform. Few of the New Orleans committee but were his fierce opponents in the past, yet the administration organ in this city intimates that they are "really acting in the interest of Warmoth." And what do this committee ask — a committee representing such vital interests as to draw around them thousands of citizens to wish them "Godspeed" when, in a drizzling rain, they depart for Washington? What do they ask? Anything unreasonable? Why, their story is twice told, and yet we shall repeat it again and again, in the hope of bringing the North to its senses and Congress to its duty.

They ask the Federal Government to make a candid and impartial investigation of the facts we have so often put before our readers. They maintain, and we have every reason to believe them, that they have not heretofore been concerned in the controversies among the political classes which have endangered the peace and brought scandal upon the State. They picture two distinct governments claiming sovereign jurisdiction, the United States and State courts in direct conflict, Judge Durell, under color of the enforcement act, overturning the entire State administration with one hand, while he seizes an opposition newspaper with the other, plotting, we are told, for a nomination to the federal Senate. No wonder that strong men weep; no wonder that commercial travelers in New Orleans, representing more than thirty New York houses, address a memorial to the people of the North, protesting against the "arbitrary usurpation of power and place by political adventurers, backed by a United States judge, who has called in the assistance of United States troops to execute his decrees!"

It was not treason that the Liberal Republican Governor-elect preached. From all sides we learn that the State election was peaceable. There was every evidence at first of John McEnery's election, and that he should have asked the President to suspend recognition of both governments until there could be laid before him all the facts, seems to us based upon far more sense of justice than Attorney General Williams's immediate recognition of Pinchback, who, with a roving commission from nobody, but supported by federal bayonets, now legislates headlong out of office whatever Senator or Assemblyman incurs his dread displeasure. [. . .]

p30 We do not believe, nor do the committee believe, that the President desires to tyrannize over the South. [. . .] General Indicates a West Point graduate, Class of 1843: a link to his biographical entry in Cullum's Register.

Indicates a West Point graduate, Class of 1843: a link to his biographical entry in Cullum's Register.

Grant asks for peace, and we contend that a peaceable union is utterly impossible so long as there is usurpation in any part of the country. Northern Republicans disbelieve in the sincerity of Southern Unionists, and hence are ready to support carpet-baggers. We assure them that no disbelief ever had less foundation in fact, that no people were ever more ready to accept the situation; but that the best way to foster hatred and revolution is to carry out the guerrilla warfare of adventurers like Pinchback. It is quite possible for a negro or a northern man to be a rascal. It is quite possible for a southern man to be honest. Let honesty prevail, and good government will ensue. Let Congress demand a thorough investigation, appointing investigators without fear and without reproach, and Louisiana will be satisfied. Her best people are not so much averse to Kellogg as they fear his Legislature. Let the election records be closely scanned. Attorney General Williams admits that there may have been irregularities in the registration and election." "Irregularities" is a mild term for tampering with the ballot-box, the aegis of our liberty, and comes with rare grace from the Attorney General of the United States; but the admission is alone sufficient for action, and if upon reassembling Congress does not hearken to the voice of press and people, we shall believe that there are things far more rotten here than in Denmark.

Appendix

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