The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1874-05-08

Let ~ suppose that the decree Ia wrong; that
and that Baxter is Governor De jure. That admis-
sion would not benent Baxter. or make II lawful
for me President on Bsxter's application to cal
show that Mr. Brooks Il in insurrection against
the government OF Arkansas. go y
THE VOICE OF THE JUDICIARY.
Iffs be admitted. arvume,aM ordts1 that Mr.. Bax.
ter y Governor Dc tlre he does not thereby be-
come the government The government Of Ar ,
and the judiciary. The judiciary has decided that
Bro0ks y Governor, and that decision means that
onace. He Is now niling It de- .Tacto. But, setting
emitting sDin,s. q ssl q. Bsx!sI have ,ss
OF the government the Legisiature. has
not yet spoken Hence the only portion Of the
says that Brooks is Governor. with what show OF
reason can y then be said BY Baxter that Brooks
Is The sns
decision o. the court IN favor oi brooks Is wrong.
the incontrovertible proposition that the occasion
President Of the United states can act on no other
presumption. The President Is the sole and ex-
ciuslvo Juuge whether an insurrection headed by
BrQ0ks against the government Of Arkansas exists
or not g
ExEcuTIvR DIsoRErroN.
On this question OF discretion the Supreme
COURT Of the United States, in the case OF Martln
va Mott-l2th Wheaton, D-uses emphatic lam
power the ms 70 ' rspe
Inc pri hv t laid dswn and the language en-
csss Of ecuGs are equally TO the
q the court thus eondded by Congress % Presi-
people jealous q Ss s.sscse q mill
sry power and the power to cali the militia into actual
tude But il not power which can Be sxscuied with.
g IL or
%nsa5 q 81 nyss0n Ss limited ne
sna dscIdsSi K Inc President ne sos sscasiys
every m 81 ,sa who refuse the
lon that the authority Decide %hss R,n:
M; thar s dsso .
upon All other persons We think that this construc
seli and from the manifest object 81 the
spon s g &c s
and under circumstances which may be vital the
Ho%ssd q M Union '' also Luther Va s0rden
In the exercise Of this delicate, responsible and
% sas ta t S tine ~ mt y called upon
is wrong and that the man who is doing nothing
more than acting in accordance with that judg-
his state. There certainly can be no hesitation In
the mind o. the President In view OF such state
stances. an ins1rgent, would 30 plain perversion
OF the meaning OF the word.
There 10 no insurrect0n, then, in Arkansas, by
A@~es
fore those courts for ultimate determination. MI.
ssa them 70 tSe ses
the Unltsa states VINO must decide on his nigh
w1snr Re v s out the a
THE HIGHEST GOVERNING POWER
Second-In no sense can Mr.. Brooks be said to be
government or Arkansasy The Legislative depart
ment ts the most important In every free govern
q RI a N
and TO interpret which 10 the junction OF the judi
ctary; It Is the government and u 80 considered In
section Of the act ofFebruary g. l795 which declares
That the Legislature alone when 1t can be convened
Instruction. Against this power BROOKS is no in
surgent but " acting In pursuance to law a. inter-
preted oy the Judiciary Instead OF Brooks being
IN instruction, then, against the government OF
the State so far as he Is concerned no such insur
rectton exists A review or the course Of events In
crisis win render abundsntly manifest the alsity
OF those pretexD BY which Mr. Baxter pre-
tsnds snas M. 6r0Sss Is N nsurreoson against
rst section OF article OF the constitution OF Ar
kansas-lsee Arkansas Code, page 4S7)-an cleo
took place on 6th November, 1872, when Brooks
ernor. At this eiection, Is Brooks claims, and
as he has asserted In Court ana az Bax-
ter has N Court admitted y demurrer he,
was legally elected Governor Of the State OF Ar
kansas The constitution OF that State provides
page 4oD-'The returns OF every election for Gov
ernor, Lieutenant Governor, Secretary OF State,
tendent OF Public Instruction. snail be sealed up by
the returning o1cers and directed 70 the presiding
ofncer OF the Senate, who. during the drst week
OF the session, shall open and publish the same In
person having the highest number or votes shall
shall have the highest and equal number OF votes
Tor the same once one OF them shall be chosen BY
shaii. likewise be determined BY both houses Of the
General Assembly In such manner a. u or may
hereafter be prescribed BY law"
TINS clause makes II the duty q the presiding
of1cer OF the Senate ITO open and publish'' the
they may be- and whether the votes peopie
fraud fraud; such CHI rp9bcation" By the presiding
only prtma Jucis evidence Of an s cleo.
ton. The election V BY the people. ana
defeat the right Of the candidate who obtained
the majority OF votes, no matter how the returns
s appear: THIS , clause o. the constitution
but in either case the declaration is only primo
knows that the majority was cast for him.
FUNCTION OF THE COURTS
AS the election ohcers |" says Judge Cooley in his
sSGq 20 Dass par. ' %as
e aa Them the r s
conclusive in favor OF the ofcers who thereby ap-
pear to be chosen, but the inal decision rest
win ths courts This - the general rule and the
der which the canvass made declares the
Is established with powers OF nna decision. And mat
ters not how high and important the office, election
IL Is only made by the candidate receiving the requisite
plurality of the legal votes cast; and II any one,
without having received such plurality, intrudes
into an once. whether with or without GER
thcate OF election, the courts have Jurisdiction
Gust D q we'll = 70 punish him for such intrusion
TONED relates g the evidence which the at
liberty 70 receive and the facts which proper to
spread before the jury for their when
issue s made upon an election tor trial at law The
questions involved In every case are nrst has there
been an election and second was the party who has
q such election BY having received majority Of the
legal vOeos CAST These questions which involve
mixed Of law and fact and the proper pro-
ceedng IN which 70 Try them IN the court; by quo
for the purpose Upon the first Question shall not
add TO what we have already said When the second
70 b considered Y 70 b: constantly borne In mind
manifested by their ballots and % this should all tho
Il should be admimiblo.n HNlN f&HEt
ELECTION CONTESTS.