496 



LOUISIANA. 



is presumed to know the law, and therefore to know 

 that the persons thus altering and publishing were 

 without authority to do that particular act, and that 

 it was void and of no effect when done. Hence it is 

 the essence of this crime, that it should have been 

 committed by a public officer, whose function it was 

 to prepare and publish the true canvass and compi- 

 lation of votes ; and the averment that he uttered 

 and published the false canvass and compilation in 

 Ids official capacity, and under color of his office, 

 is essential in an information to support a conviction, 

 and justify a judgment thereon. The information 

 has not such averment. 



The charge of the Judge below, which is admira- 

 ble for its judicial tone and temper, though, as we 

 have seen, erroneous on the questions of law we 

 have reviewed, proceeds throughout on the idea or 

 assumption that the act charged in the information 

 as criminal was done in the defendant's official ca- 

 pacity. Even the instructions asked by the defen- 

 dant's counsel are based on that idea. It was no- 

 where so charged. 



On February 1st, pending the trial, an ap- 

 plication was made by T. 0. Anderson and the 

 indicted members of the Returning Board to 

 Justice Bradley of the United States Supreme 

 Court for a writ of habeas corpus cum causa, to 

 remove the case from the State Court to the 

 United States Circuit Court. The petition re- 

 views the powers of the late Returning Board 

 and what they considered their duty under the 

 law. It holds that in the returns made and in 

 the promulgations they were justified by the 

 laws of the United States which have for their 

 object the practical enforcement of the equal 

 civil and political rights of citizens of the Unit- 

 ed States. In the first instance they hold that 

 they were United States officers, and secondly 

 were upholding the provisions of the fifteenth 

 amendment, wherefore a writ of habeas corpus 

 was applied for, to be directed to the Glerk of 

 the Superior Criminal Court, and that the case 

 be removed to the United States Circuit Court. 



After reviewing the two points in the peti- 

 tion, the Justice decided, " Upon due consid- 

 eration of the foregoing petition I am of opin- 

 ion that it can not be granted, and it is accord- 

 ingly denied." 



The reasons advanced by Mr. Justice Brad- 

 ley for this decision were as follows : 



The right of removal was claimed under section 

 843 of the United States Revised Statutes, and under 

 that clause of the section which authorizes a removal 

 whenever any civil or criminal prosecution is in a 

 State court against an officer of the United States or 

 other person on account of any act done under the 

 provisions of the " elective franchise," or on account 

 of any right, title, or authority under any of said 

 provisions. To entitle the petitioners to the remo- 

 val ^sought^ the petition should show that the prose- 

 cution asainst them is for some act done as United 

 States officers. 



The claim of petitioners that in acting as members 

 of the Returning Board they were United States offi- 

 cers is not tenable. They were State officers, ap- 

 pointed under a State law and acting under the State 

 authority. The claim that the correctness of the re- 

 turns was adjudicated by the Electoral Commission 

 was equally untenable. The Electoral Commission 

 declined to go behind the returns, or to examine into 

 their correctness. It denied its jurisdiction to do 

 this. These grounds of removal, therefore, are not 

 founded on facts. 



The other ground alleged, viz., that the acts on 

 which the charge of making false returns is based 

 were done by the petitioners in pursuance of the en- 

 forcement laws of the United States, is more to the 

 purpose. The difficulty is an entire one of specifi- 

 cation of the acts referred to. This may be owing 

 to the fact that no specification is made in the infor- 

 mation against them ; the charge is simply that of 

 falsely and feloniously uttering and publishing as 

 true false and forged returns, from the parish of Ver- 

 non, of an election for Presidential electors. What 

 evidence will be presented in support of the charge 

 does not appear. It may have no respect to the acts 

 of the petitioners done by them in pursuance of the 

 acts of Congress. The charge docs not necessarily 

 or presumptively imply this. The petitioners can 

 only conjecture that it will be so. In many cases 

 there would not exist any doubt as to the specific 

 acts complained of, and the defendants would have 

 no difficulty in affirming the authority under which 

 they were done. A revenue officer making seizure, 

 for example, and being prosecuted for taking the 

 party's goods, could with reasonable certainty affirm 

 what goods he was charged with taking, and could 

 safely and with certainty allege the authority by 

 which he did the acts complained of, and thus be 

 enabled to remove the cause to the Federal Court. 

 So if, in obedience to the enforcement act, an officer 

 of election receives the votes of unregistered persons 

 not allowed to register on account of color, and is in- 

 dicted for receiving unlawful votes to wit, the votes 

 of A, B, and C, specified by name, or even without 

 such a specification he could very properly affirm 

 what particular acts he was indicted for, and could 

 have no difficulty in removing his cause. But in the 

 present case the charge is for publishing a false re- 

 turn of an election held at a particular place. The 

 defendants can not allege that the return was made 

 under an act of Congress. It was not. But they 

 suspect that it will be attempted to make out against 

 them the falsity charged by proving certain acts 

 which they did under the enforcement act. This, 

 however, they can hardly know with sufficient cer- 

 tainty ; and if they do know it, they have not speci- 

 fied the acts, or class of acts, which they suppose to 

 be the basis of the charges, so that the Court may 

 see with sufficient clearness that the case is one that 

 is removable. 



It seems to me, therefore, that no sufficient case is 

 presented for a removal of the cause. To entitle to 

 a removal, the case must be shown to be within the 

 category of removable causes. The general asser- 

 tion of the party that it is so, or any general asser- 

 tion that does not enable the Court to see that it is 

 so. is not sufficient. But the petitioners are not with- 

 out remedy. If on the trial it should be attempt- 

 ed to sustain the charge by acts of the petitioners 

 done by them in pursuance of the acts of Congress, 

 they can then claim the benefit of those acts, and, ii 

 refused by the Court, can carry their case to the Su- 

 preme Court of the United States by a writ of error. 



The Legislature of the State assembled on 

 January 8th. There were in the Senate 36 

 members, of whom 20 were Democrats and 16 

 Republicans, the seat of one of the Republicans 

 being contested; in the House there were 64 

 Democrats, 52 Republicans, and 2 Indepen- 

 dents, while returns from two parishes had not 

 been received. The right of six of the Repub- 

 licans to their seats was contested. 



The views of the Legislature and of the pop- 

 ular majority on the course of the Federal 

 Administration were soon made manifest. On 

 January llth the following concurrent resolu- 

 tions were presented in the Senate by Senator 

 Burch: 



