The New York herald., 1877-02-06

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time allowed me- brief though il be. Now. as to this
doctrine OF
What is that? The best definition OF officer de
fdcto which have fallen in with Is that given by LORD
Peterborough in the Of the King The Corpora
tion OF Bedford, Seve &c. East $685. An oicor dc
acto, he says is one who has the reputation OF being
the officer ho seems to be, and yet is not good officer
in point OF law. He is ono who has
clothed himself with tho reputation OF being
officer In relation to that individual that per.
son. the law with It's wise conservatism, has declared
that during tho period when the person pretending
title the Office was In apparent possession OF all the
powers aud functions and exercised The duties G OF
| II his acts as respects persons who, In the
ordinary course OF things, were obliged 70
recognize him and 70 act under ana IA
conformity with his powers, shall DO esteemed valid.
That individuals must not be deceived by that species
dsorder or temporary nsurrccton which has broken
III upon the functions of government. IS the duty
of individuals, aud they are under the necessity
also, for their business purposes, II there were
and IL these only authorities TO which they can
reer reler TO them and in that action oil theirs as
a reward for their humble obedience anu respect Ior
order regularity and the apparent law they held to
be entitled TO protection, ana IN an iorms' ways ny
and places hsy ARE &c Ss class naf of
would take leave prove by referring to Green Vs.
Bunker, 23d Wendell, sos. where there is very able
opinion written by OF the most elaborate invest
gators OF legal authority that have ever known
or heard Of Judge GSl0m' 81 formerly srSrnsa of
the authorities and what he says is that tho cases to
be sure have gone pretty far.
~ know, y he says, 'that the cases have gone
good ways, but they have stopped with preventing
mischief to such conhdcd in the officers who were
acting without rlgh'' That is tho sum of author
here contended for? That these officers having acted
under color OF right and having completely exercised
and perfected the function with which they appear 1t
said) TO be charged, ana with which, II they wero
duly elected they were charged any subsequent at
tempt II aside would be contrary TO that princi-
pie contrary 10 convenience and mschievous to
ciey. Now, is that SO? Is not that principle OF me-
cessity confined to affecting private persons? Is
it not Of necessity confined TO cases where the act OF
the officer de tacto is consummaed and perfected In
some manner before II is ascertained that he Is not
entitled to his Office and he Is oustcd
Arc the bank notes OF bank not having authority to
them, although signed and perfect, ana finished,
and put in the hands OF an agent, valid ana eectua
under this principle until some person has con-
nded In them, and has received them, and
been thus rnislcd by tho appearance Of
right with which the bank had improperly clothed
itself Now maintain that neither the public good
nor tho protection OF roE. deception nor any rule
OF onveniencs or policy requires allowance Of pre-
tended electors, whose title, on investigation by com.
petent authorities, before tho votes have been opened
and counted has been ascertaned 10 be grounulcss.
rIIE FACTS
Referring to the facts Of the what do We find?
These four gentlemen sit down with false Governors
certificate, or sham certificate rom Board OF state
Can nvassers and they Of their own authority certify
ing their themselves, cast four votes in gwen
an officer who cannot look at it until the
time OF Its presentation [ for the l"c purposo ,o Of
time arrived at which that act OF theirs
could deceive anybody, could have any opposition,
could take effect. coue get such condition that
its preservation and maintenance necessary for
the OF public justice or private right Their lack
OF title was ascertaincd by solemn writ Of quo war
rantO 1t was ned that they usurpers that
they had right to tho Office and that their acts
void 10 there any such principle as that the in
choata partial action of an officer dc facto shall
be carried forward and 60 to It's perfection by the ac-
ccptance Of tho due and valid act alter the IN
validity of what officers claim has been established
Whether we reposa on tho quo s"drrdnto under Your
Honors allowance, or repose on proof which may bo
here offered admitted ana passed upon oy YoET non
those gcntemcn's claims TO the offices Of
electors, or in whatevcr shape this matter Is
presented carried forward, tho act OF
these officers de aco fails to have reached the point
have or take any effect, or can deceive or
mlsead a ybody, and 1t Is shown and established by
competent means to be of those who had no
authority perform it. The position OF the thing IS
very striking in that single aspect which tho other
puted. convicted usurper claimed TO DO received and
to have an effect, which 1t has as yet never
the intiatory and preliminary step. which
was to render II cliectual at last they had been
oiico 1t may be said that this sharpened arrow,
aimed at the heart OF the nation aimed or the purpose
ling down the vote OF the State OF the nation,
fairly placed the bow OF the ursurpc that adequate
force and strength was gwen 10 ;. TO m carry 20 70
stung to death by 1t, sbut II cannot
successful II quo warranto is eectna or II the
shield Is nterposed between the wrong doer and the
| bosom OF the nation. by which this arrow, stepped in
the guilt Of fraud, destined to the pcrperation of in
lustice and the consumma Of atrocious untruth
| has been diverted and dvesled Of all its powers.
In this connection, under this strange head OF a
claim to have a dc fncto President by lorce OF vote
OF de lacto electors call your Honors' attention to
single of which This case s susceptible.
Now, although there may be an officer do facto, 1t
seems to be in tho of things that there
DO an unlawful, Unauthorized tribunal or body do
facto acting without right These persons could not
act except ny constituting what has been well enough
| called electoral college, oi winch they would
| DO the members They undertook to consti-
tute It, 1t was an electoral college OF their
own wrongful claims and intrusive persons, and thus
sought create by wrong and without one single ee-
ment OF right, lawful electoral college. ask our
Honors for purpose OF showing that this distnc-
ton is entitled TO considerable weight, TO refer to tho
cases of Hldreth's heirs VS.. Mcintyre, devisee |,
when certain persons, being no doubt dc iaclo
officers, claimed that they had established a
dc iacto court and the determination oil the TACT
(which submit 10 your Honors' consideraton), was
that could not he dc acto court although there
might be dc iacto Judge or a DC iaclo oIicer And
wc say the reasoning that there could not be
unlawful do iacto electoral college. composed
mere p,e'e1ders to that ss oics canooc.oD wno
you have exactly the which before the Court
there. which, perhaps, exists in other State Of this
OF two distinct bodies existing at the same
time, rightful and tho other wrong.
to be created The Tilden electors who although they
had not documentary evidence TO establish Their title,
had actually been elected our evidence to be be-
lieved, convened their Electoral college, performed
their ceremonies, which the Constitution and laws OF
the United States cnJolncd upon them and winch 1t
was possible to perform, failing only this that they
did not obtain the certificate Of the Gov.
ernor They constituted the college. Ihey
acted and they sent forward their votes. Thus
you nave two rival bodies, acting 10 be sure at the
right time, In the night place and prescribed by the
laws bearing on tho subject; two rival bodies, one o
which was composed OF rightfuly and duly elected
aud the which was composed OF persons who
had no right. but only the mere color or pretencc
right who usurpcrs, as has been asceraihed II
one form vii! be ascertaned in any other that may
be satisfactory to you II you VIII permit us 10 miro
duce the evidence.
Now, this Is the actual condition of this case TIT
constitution prcscrbcs no form save such as las beef
| complied with by the Tildcn electors. The law o
| Congress prescriDcs no forms which were not com
piled with by the 1den electors save and except onll
that they could obtain the Governors certificate
and 1t pretty much conceded, think, that the Gov
ernor's certificate Is not absolutely Indispensable
and NAV DO gansad and contradIctcd
even # 1t had been given and was fasc SO that In h
OF rivalry between these two sets of electors II ap
pears to me that we present the best esai te. ina
we have the moral right Is the common sentiment o
all mankind IL will bc the judgment OF postcrity
lnre nnl IA Know. TIL