Democratic Sentinel, Volume 7, Number 33, Rensselaer, Jasper County, 14 September 1883 — JUDGE BUCK AS A PATRIOT. [ARTICLE]

JUDGE BUCK AS A PATRIOT.

His Great Arguments Against the Crime of the Century. Fraud Wrapped in the Forms of Law Is Fraud—Votes and Not Forgeries Must Be Counted. The Waters of Truth Rise Gradually but Surely, and Then Look Out for the Flood!. (The “ Congressional Record’s ” Report of Judge Black’s Speech before the Electoral Commission, Feb. 3, 1877, over the Fraudulent Certificate from Florida.] Mb. President and Gentlemen of the Commission: The time allowed for the onening of this argument on our side Is nearly consumed. Ido not presume to do more than merely supplement or enforce by a few general propositions Mr. Merrick’s admirable statement ot our case, which is well calculated to impress the true nature of it on the minds thsi court, and to give a full notice to the gentlemen on the other side of what we intend to rely upon, as anything that could possibly have been said. lam only “gilding relined gold” when I attempt to add anything to it. You have before you the cjuestion whether this case is to be decided by you upon the evidence taken for the purpose of enabling the Seifite and House ot Representatives to doj the duty which the’ constitution cast upon them of count.ng the votes and of seeing that votes only were counted. For all the reasons that I gave this morning, and for many other reasons which I might add if I had time, 1 insist upon it that the evidence being once reported and filedin the cause is to be treated as a court of equity treats evidence in the same condition. You may throw it out; you are not required to give it, because you have admitted it, any particular force or weight or value in your final judgment; but you are to look at it and determine the case upon all that lain it Andi can give you an assurance, founded upon some little experience, that a Judge never decides upon any subject much tne worse for knowing a little about it before he does decide. This notion of determining the whole case upon an offer to admit evidence is a thing thut you have got to forget It is impressed upon those who practice the common law very strongly by. that peculiar and anomalous system that is adopted in the common law courts upon jury trials It is not natural; it does not belong to any other kind of tribunal. If there be any evidence here which comes through illegal channels, or if it comes from an improper source, let them move to suppress it. But being in already, and therefore part of tne case now, you cannot ask us to offer it over again I need not certainly produce “Chitty's Pleading’ and “Danniell’s Chancery Practice,” or “Starkie on Evidence,” or any of the rest of the books in which these rules are laid down I need not show you what is the code of procedure in courts of admiralty and courts of equity, for I take it for granted that these are things bn which I may speak as unto wise men One of the gentlemen who spoke yesterday repeated what had been said by Judge Marshall, and which lam glad he did. We have heard it before, but it cannot be told too often, for it contains a very wholesome moral. The Judge said to a counsellor who was addressing him that a Judge of the Supreme Court was presumed to know something. I hope that no decision which you make in this case wilt repel that presumption Indeed I think it will be extended and enlarged, and » that the presumption after this will be not only that Judges of the Supreme Court know something but that members of the Senate . and House of Representatives also know something. There has been much talk here about getting behind the action of the State. I do believe firmly in the sovereign power of the State to appoint any person elector that she pleases, if she does it in the manner prescribed by the Legislature; and after she has made the appointment in that manner no man has the right to go behind her act and say that it was an appointment not fit to be made. A man, whether he be an officer of the State, or an officer of the General Government, wuo undertakes to set aside such an appointment is guilty of a usurpation, and his act is utterly void. Therefore, if the Governor of the State of Florida, after this appointment of electors was made by the people, undertook to certify that they were not ejected, and put somebody else in the place which belonged , to them, his act was utterly void and false and fraudulent We, are not going behind the actions of the State; we are going behind the fraudulent act of an officer of the State, whose act had no validity in it whatever. This is a question of evidence. Who are the electors? Two sets of persons come here, each of them pretending to be the agent® of the State of Florida, for the purpose of performing that important function of the State, the election of a President and Vice President of the United States. It is the business of the two houses to count the votes. Now, remember the argument that Mr. Merrick made upon that constitution; let it sink into your hearts, and de not forget it, because it is God's truth. The word “votes” it is that controls the meaning of it “The votes shall then be counted; the votes, mind you—not the frauds; not the forgeries. But they on the other side tell us that, if the President of the Senate lays before the two Houses when the votes are to be counted a false paper, a paper which was absolutely counterfeited, that is an end of it; you cannot produce any extrinsic evidence for the purpose of showing that it was a forgery, or any evidence to show that it is not genuine. The doctrine goes that far if it is to be adopted at all. Carry that proposition to its logical consequences, and where does it take you? That you must simply receive whatever anybody chooses to fabricate and lay before Congress through the President of the Senate, and that neither the President of the Senate, nor either of the two Houses, nor both of them together, can do anything but just take what is given to them without inquiring into its genuineness at all I affirm, everybody affirms, and I hope to God that nobody here, even on the other side, will attempt to deny that the Congress of the United States has the verifying power, the power that enables it to inquire whether this is a forgery or not; and, if you have the right to inquire whether it is counterfeit, you have a right to inquire whether it is or is not invalidated by the base fraud in which this was concocted. The work of the counterfeiter is as well entitled to be received for truth as this spawn of a criminal conspiracy, got up to cheat the State and the Union, overturning and overthrowing the great principle that lies at the foundation of all our security. Why, this doctrine that a thing which is false, ’ willfully false, is utterly void and good for nothing, has been by this court (I mean by the Supreme Court) asserted a thousand times. Nay, I undertake to say that the contrary doctrine has never yet been set up by any Judge or any lawyer whose authority is wof th one straw. Suppose you have a ca c e of a patent issued by the Secretary of the Interior or the Commissioner of the General Land Office, the validity of which depends upon a confirmation by the court, and he falsely recites that the court delivered a judgment, which the record shows it never did pronounce, and Upon that basis puts the patent Is this patent worth anything? why is it worthless* Because it is based upon a fact which is untrue. “False” is “fraudulent” in all cases of this kind. When a man undertakes to say, “I certify to this fact,” and at the same time he does ft there glares upon him from the record that lips before him the evidence that the fact is ihe other way. is not that a fraudulent certificate ? And, if it be fraudulent, is lt.not as well void in law and as corrupt in morals as if it were a simple counterfeit? In this case we show that it was fraudulent How? By producing the evidence which the Governor was as well aware of as we ar&, Which every man and woman and Child in this whole nation knew or had reason

to believe was true, namely, that the other set of electors had a decis e and clear majority of the votes that were received and counted at the polls. He knew it, because It was recorded in every county of his State; the votes were collected together and filed in the office of the Secretary of State. That is one way in which we show the falsehood and the froud; but we show it again by the evidence of an act of the Legislature containing the solemn protest of tbe State against the cheat which her de facto Governor attempted to palm off upon her and Upon the nation. We prove it again by showing that the Governor himself—not the same person, but the same officer—rebuked this fraud, declaring that the other parties, and not those whose votes are now offered, were elected and chosen, and authorized exclusively to cast the vote of the State. Thus acted two departments of the State Government of the State. But the State,de-termined-sot to be cheated out of her vote and determined that she would ascertain in some undeniable form by a proceeding, the correctness and truth of which could never be impeached, took those usurpers by the throat and dragged them into a court of justice, and there, in the presence of a competent tribunal, she impleaded them, charged them with the offence, brought the other parties who also claimed to be her agents for this purpose and set them face to face. The proofs were given upon both sides, and it ended in a solemn adjudication by that court of competent jurisdiction that the persons who claimed to cast these votes for Hayes and Wheeler had no right nor authority nor power whatever to do that thing Now look at this. Whenever a cause has been decided by a court of competent jurisdiction, the determination of that court, as a plea is a bar, as evidence is conclusive of every fact and every matter of law which was or could have been adjudged there, and neither law nor fact there determined shall ever afterward, collaterally or directly, be drawn into controversy again. Is not that the rule? It was so laid down in the Duchess of Kingston’s case, which has been followed in every court in Christendom from that day to this. There is not in England or America one Judge or one lawyer who has undertaken to assert that the law is otherwise stated, nor has it ever been attempted to be clothed in any other words than the clear and felicitous language used by Chief Justice De Grey in that case This doctrine has been applied over and over 'again to election returns as well as to all other things. It would be perfectly absurd to say that, when the title to a horse is in question before a Justice of the Peace, the doctrine that makes the title void may be applied so as to save the horse to the honesvowner of it, should not be applied to a case in which the rights of a whole nation are involved. False returns have been made many times; false counts have been made at the polls; election officers have altered the count afterward. No man that I know of has ever said that an election fraud ought to be held to be successful merely because it was put into the forms of law'; never before this time, except on two occasions. In New Jersey the Governor of that State stamped the broad seal upon a commission as members of Congress for five gentlemen whom he knew not to be elected. Congress said that certificate was void. They, the House of Representatives, did precisely what we ask the two Houses of Congress and you, their substitute, to do in this case. It was contended then, as now, that the certificate of the Governor was conclusive evidence of the right of the commissioned men to take their seats in the first place and participate in the organization of the House Do not let it be said that this arose out of the right of a legislative body to pass upon the qualifications of its own members. They had’ no right to pass on the qualifications of their own members until they were organized. The right of those men to hold their seats until the time when their seats were declared vacant upon a petition of their adversaries to unseat them was as conclusive as anything can be. supposing it to be honest. But it was not honest, and that made it all void. Mr. Commissioner Strong—Were those persons who held the certificate of the Governor of New Jersey admitted to their seats at all? Mr. Black—They were not Mr. Commissioner Strong—Not allowed to take seats and participate in the organization? Mr. Black—Not allowed to take seats at all Mr. Commissioner Strong—l understood yon to say that they were. Mr. Black—l do not know but that your honor was in Congress at that time. Mr. Commissioner Strong—No, sir. Mr. Black—l supposed you were. That was in 1839. You were not in Congress then. There was a very great struggle over it, and it lasted four or five weeks, one set of men pressing the fraud with as much vigor as any of our friends can press this one, and it being resisted at the same time with perhaps more firmness than we are resisting now. There is another case, however, that one of the Judges upon this bench will recollect more distinctly. Ido not say that there was any judicial or legislative determination of that question which makes it authority in this case, but it is an illustration of the condition in which we are to be thrown if a mere fraud —a counterfeit—is to be accepted as sufficient to carry everything before it. In 1838 Mr. Porter was elected Governor of Pennsylvania by a majority of about 14,000. It was thought desiraole that the election should be set aside and treated as though it had not been had, and in order to do that it was necessary that his opponents should have possession, not only of the Senate and Executive, which they had already, but of the other house of the Legislature, the Lower House; and in order to effectuate that they just simply manufactured, fabricated, impudently and boldly, a fraudulent and false return of eleven members from the county of Philadelphia. The law was that the returns were to be made to the Secretary of the Commonwealth, and he was to make out from those returns a list of the persons who were entitled to be members of the House. They said that certificate was conclusive evidence, and it was conclusive evidence if the fourth section of the act of Congress in this case makes the Governor’s certificate ’conclusive of the elector’s election, because it is very nearly in the same language. You ’know what became of it—the Buckshot war. They intended to carry that out at the expense of covering the whole commonwealth with blood and ashes, and would have done it only they could not get Gen. Patterson and his men to fire on the people who were there assembled. Until now, except In those two cases, nobody in this country has ever had the portentous impudence to offer a fraudulent vote«and insist that the fraud could not be inquired into because, forsooth, it came wrapped in the forms of law. I believe my time is out, and I am not going to trespass upon your Honors any further. Mr. Black—There is one thing which I omitted to mention, and which it is necessary to call the attention of the court to; ana that is the evidence which we have produced here to show that one of the Hayes electors was ineligible on account of his being an officer of the Federal Government on the day the election took place. I suppose that makes a clear case as against him. / [The Record’s repert of Judge Black’s speech on Feb. 27, 1877, over the fraudulent certificate of South Carolina.] Mr. President and Gentlemen: I had not, and have not now, any intention to argue this case. I never heard the objections nor knew what they were until they were read in your presence this morning. It would be presumptuous in me to attempt an argument before a tribunal like this on such a case as this, having had no previous opportunity to consider it. which might put me in a condition better than the Judges themselves. You have heard as much of this case and know as much about it as I do. My idea of the duty which a counselor owes to a court or to any other tribunal, judicial or quasi-judicial, is that he should never open his mouth except for the purpose of assisting the Judges in coming to a

correct conclusion; and if he is not in a sitnation to do that he ought to keep silence. Besides that, I am, I suppose, the very last man in this whole nation who should be called upon to speak here and now. Everybody has suffered more or less by events and proceedings of the recent past, some by wear and tear of conscience and some by a deep sense of oppression and wrong. But perhaps I, more than most others, have felt the consciousness that I have lost the dignity of an American citizen. I, in common with the lest, am degraded and humiliated. This nation has got her great big foot in' a trap. It is vain to struggle for her extrication. I am so fallen from the proud estate of a free citizen, you have so abjected me, that I am tit for nothing on earth but to repieseut the poor, defrauded, broken-hearted Democracy. And because I suffer more, they think me more good for nothing than the rest, and conclude to send me out on thia forlorn hope, judging, no doubt truly, that it matters nothing what becomes of ma I ought to go gladly if anything which I can do or say might have the effect of mitigating the horrible calamity with which the country is threatened; a President deriving his title from a shameless swindle, not merely of fraud, but a fraud detected and exposed. I know not how I would feel if caMed upon to suffer death for my country. lam not the stuff that martyrs are made of, but, if my life could redeem this nation from the infamy with which she is clothed, I ought to go to my grave as freely as I ever went to my bed. I see, however, no practical good that I can do, and it is mere weakness to complain. We have certain objections to the counting of this Hayes vote from South Carolina which look to me insuperable, but I cannot hope that they will wear that appearance in other men's eyes. Perhaps the feeling which I, in common with millions of others, entertain on this subject prevents us from seeing this thing in its true light But you are wise, you are calm. You can look all through this awful business with a learned spirit; no passionate hatred of this great fraud can cloud your mental vision or shake the even balance of your judgment You do not think it any wrong that a nation should be cheated by false election returns. On the contrary, it is rather a blessing which Heaven has sent us in this strange disguise When the omnipotent lie shall be throned and sceptred and crowned you think we ought all of us to fall down and worship it as the hope of our political salvation. You will teach us, and, perhaps we will learn (perhaps not) that, under such a rule, we are better off than if truth had prevailed and justice been triumphant. Give, then, your cool consideration to these objections, and try them by the standard of the law—l mean the law as it was before the organization of this Commission. I admit that since then a great revolution has taken place in the law. It is not now what it used to ba All our notions of public right and public wrong have suffered a complete boulevereement. The question submitted to you is whether the persons who gave these votes were “duly appointed.” Duly, of course, means according to law. What law? The Constitution of the United States, the acts of Congress passed in pursuance thereof, the Constitution of South Carolina, and the authorized acts of her Legislature—these, taken altogether, constitute the law of the case before you. By these laws the right, duty and power of appointing electors is given to the people of South Carolina—that is to say, the citizens of the State qualified to vote at general elections. Who are they? By the constitution of the State, in order to qualify them as voters they must be registered. The registry of a native citizen is a sine qua non to his right of voting as much as the naturalization of a foreigner. Now, the Legislature never passed any law for the registration of Voters, and no registration of them was ever made. No doubt has been or can be entertained that the object and purpose of this omission was fraudulent and dishonest; for the Legislature as well as the executive department of that Government has been in the hands of the most redemptionless rogues on the face of the earth. But whatever may have been the motive, nobody can doubt that the legal effect of this omission is to make the election illegal This is hardly the worst of it. The election itself, emancipated from all law and all authority, was no better than a riot, a mob, a general saturnalia, in which the soldiers of the United States army cut the principal as well as the decentest figura We offer to prove—the offer will go upon record, and there it will stand forever—that every poll in Charleston county, where they rushed into the baUot box 7,000 majority was in possession of the soldiers A Government whose elections are controlled by military force cannot be republican in form or substance. For this I cite the authority of Luther vs. Borden, if perchance the old-t'me law has yet any influence. Do you not see the hideous depth of national degradation into which you will plunge us if you sanctify this mode of making a President Brush up your historical memory and think of it for a moment The man whom you elect in this way is as purely the creature o f tbe military power as Caligula or Domitian, for whom the Praetorian guards controlled the hustings and counted thevotes. But then we cannot get behind the returns, forsooth! Not we! You will not let u& We cannotget behind them. No. This is the law, of coursa We may struggle for justice; we may cry for mercy; we may go down on our knees and beg and woo for some little recognition of our rights as American citizens; but we might as well put up our prayers to Jupiter or Mars as bring suit in the court where Rhadamanthus presides. There is not a god on Olympus that would not listen-to us with more favor than we shall be heard by our adversaries We are at their mercy; it is only to them that we can appeal, because you gentlemen unfortunately cannot help us. You are bound by the new law which you have made. You are, of course, addicted, like other people, to the vice of consistency, and what is done once must be done over again. In the Louisiana case the people apoointed electors in favor of Tilden, recorded their act, finished it, and left their work in such a state that nobody could misunderstand it But other persons, who had no power to appoint, falsified the record of the actual appointment. partly by plain forgery and partly by fraud, whicn was as corrupt in morals and as void in law as any foigery could be. You thought it right and legal and just to say that you would not look at the record which the people had made; the forgery, the fraud and the corruption were too sacred to be int:rfer£d with; the truth must not be allowed to oome in conflict with the imposture, lest the concussion might be damaging. This precedent must be followed. It Is new law, to be sure, but we must give it due welcome; and the new lords that it brings into power must be regarded as our “very noble and approved good masters. ” 'Having decided that electors were duly appointed in Louisiana who were knownnotto tie duly appointed, we cannot expect you to take notice of anv fact similar or kindred to it in South Carolina. Then, again, the question of “duly appointed” was decided in the case of Leyißsee, an elector who was an officer of the United States Government at the time he was appointed and continued to be afterward. The Federal constitution says that no man shall be appointed who is in that relation to the Federal Government But you held to law, mind you. that he Was a lawful elector and his vote a good vote. In other words, a.thing is perfectly constitutional although it is known to be in the very teeth of a constitutional interdict Now you see why we are hopeless. The present state of the law is sadly against us. The friends of honest elections and honest government are in deep despair. We once thought that the verifying power of the two Houses of Congress ought to be brought always into requisition for the purpose of seeing whether the thing that is brought here is a forgery and a fraud on the one hand, or whether it is a genuine and true certificate on the other. But, while we cannot ask you to go back behind this certificate, will you just please to go to it —only to it—not stop behind? If

yon do you win find that it is no certificate at all such as is required by law. The electors must vote by ballot, and they are required to be on oath before they vote. That certificate does not show that either of these requirements was met, and where a party is exercising a special authority like this they must keep strictly within it, and you are not to presume anything except what appears on the face of their act to be done. If anybody will cast back his mind a little into the history of Presidential elections, or look at the debates of less than a year ago, he will remember that Mr. Jefferson was charged, when he was Vice President, with having elected himself by means of, not a fraudulent, but a merely informal vote sent up from Georgia Tbe informality was not in the certificate inside the enyelope, but outside verification. Mr. Matthew L. Davis in 1837 got up that story. It was not true, but it was believed for a while, and it cast great odium on Mr. Jefferson s memory. It was not an informality that was nearly as important as this, nothing like it. But one of the Senators now on this bench referred to it in a debate only a short time ago, and denounced Mr; Jefferson as having elected himself by fraud because he did not call the attention of the Senate and the House of Representatives to that fact If Mr. Jefferson’s memory ought to be sent down to posterity covered with infamy because he in his own case allowed a vote to be counted which was slightly informal on the outside of the envelope, I should be glad to know what ought to be done to those who would count this vote, which has neither form nor substance, which leaves out all the essential particulars that they are requifed to certify. This great nation still struggles for justica A million majority of white people send up their cry, and a majority of more than a quarter of a million of all colors demand it But we cannot complain. 1 want you to understand that we do not complain. Uusnally it is said that “the fowler setteth not forth his net in sight of the bird;” but this fowler set the net in sight of the birds that went into it It is largely our own fault that we were caught We are promised—and I hope the promise will be kept—that we shall ha vegood Government, fraudulent though it be; that the rights of the States shall be respected, and individual liberty be protected. We are promised the same reformation which the Turkish Government is now proposing to its people. The Saltan promises that if he is sustained in his present contest he will establish and act upon certain principles. First, the work of decehtrallazation shall commence immediately, and the autonomy of the provinces shall be carefully looked after. Secondly, the people, shall be governed by their natural judges; they will nob send Mohammedans nor Christian renegades from Constantinople down on them, but they shall be governed by people of their own faith. Thirdly, no subordinate officer when he commits an illegal act shall be permitted to plead 'ln justification the orders of his superior. How much we need exactly that kind of reform in this country and how glad we ought to be that our Government is going to be as good hereafter as the Turk’s! They offer us everything now. They denounce negro supremacy and carpet-bag thieves. Their pet policy is for the South to be abandoned. They offer us everything but one; but on that subject their lips are closely sealed. They refuse to say that they will not cheat us hereafter in the elections. If they would only agree to that; if they would only repent of their election frauds and make restitution of the votes they have stolen, the circle of our felicities would be full If this thing stands accepted, and the law vou have made for this occasion shall be the law for all occasions, we can never expect such a thing as an honest election again. If you want to know who will be President by a future election, do nqj; inquire how the people of the State are going to vote. You need only to know what kind of scoundrels constitute the returning boards and how much it will take to buy them. But I think that even that will end some day. At present you have us down and under your feet. Never had you a better right to rejoica Well may you say: “We have made a covenant with death, and with hell are we at agreement; when the overflowing scourge shall pass through, it shall not come unto us; for we have made lies our refuge, and under falsehood have we hid ourselves.” But nevertheless wait a little while. The waters of truth will rise gradually, and slowly but surely, and then 100 l out for the overflowing scourge. “Ths refuge of lies shall be swept away and the hiding place of falsehood shall be uncovered. ” This mighty and puissant nation will yet rise herself up like a strong man after sleep and shake her invincible locks in a fashion you little think of now. Wait; retribution will come in due tima Justice travels with a leaden heel, but strikes with an iron hand. God’s mill grinds slow, but dreadfully fine. Wait till the flood gate is lifted ana a full head of water comes rushing on. Wait and you will see fine grinding then.