son has confided in them, has received them, and thus been misled by the appearance of right with which the bank had improperly clothed itself? We maintain that neither the public good, nor the protection of men from deception, nor any rule of convenience or policy, requires the allowance of pretended electors, whose title, on an investigation by competent authority before the votes have been opened and counted, has been ascertained to be groundless. Referring to the facts of the case, what do we find? These four gentlemen sat down with a false governor's certificate, or a sham certificate from a board of state canvassers, and they, of their own authority, certifying their acts themselves, cast four votes in a given direction, put them in a packet, and sent it to an officer who cannot look at it until the time of its presentation for the purpose of being considered and counted. Before the time. arrived at which that act of theirs could deceive anybody, could have any operation, could take any effect, could get into such a condition that its operation could take any effect, could get into such a condition that its preservation and maintenance was necessary to the cause of public justice or private right, their lack of title was ascertained, by a solemn writ of quo warranto, to be groundless. It was determined that they were usurpers, had no right to the office, and that their acts were void. Is there any such principle as that the inchoate, partial action of an officer de facto shall be carried onward, carried forward, and given its perfection by the acceptance of the act as a due and valid act after the invalidity of that officer's claim has been established? Here we repose upon the quo warranto under your honors' allowance, or repose upon the proofs which may be here offered, admitted, and passed upon by your honors, for the purpose of showing the utter invalidity of these gentlemen's claim to the office of electors. In whichever shape this matter is presented or carried forward, that the act of these officers de facto fails to have reached the point where it could have or take any effect, or mislead or deceive anybody, is shown and established, by competent means, to be an act of those who had no authority to perform it.

And the position of the thing is very striking in this singular attitude which the other side has assumed,—the attitude of an undoubted, undisputed, convicted usurper. They claim to be received, and that their act shall have an effect which, as yet, it never has had, although, since the time they performed the initiatory and preliminary step, they have been shown to be utterly without right to their pretended offices. It may be said that this sharpened arrow aimed at the heart of the nation, aimed for the

purpose of establishing falsehood, seating a usurper, and trampling down the right of the state and of the Union. It may be said that this arrow was placed in the bow of the false elector; that adequate force and strength were imparted to it to carry it to the bosom that was to be wounded and stung to death by it. But it cannot be denied, if the quo warranto is effectual, or if we have a right now to prove the facts of the case, that a shield is interposed between the wrongdoer's arrow and the bosom he designed to pierce, by which that arrow, steeped in guilt and fraud, designed for the perpetuation of injustice and the consummation of an atrocious wrong, has been arrested in its flight, and deprived of its poison and its force.

In this connection, under this strange head of a claim to have a de facto president by force of a set of de facto electors, I would call your honors' attention to a single view of which this case is susceptible. Although there may be an officer de facto, it seems to be in the nature of things that there cannot be an unlawful, unauthorized tribunal or body de facto acting without right. These persons could not act except by constituting what has been well enough called an "electoral college," of which they were to be members. They undertook to constitute it. It was an electoral college of their own. They filled it up with their own wrongful claims and intrusive persons, and thus sought to create by wrong, and without a single element of right but this mere color or reputation resting in these individuals, a lawful electoral college. I would ask your honors, for the purpose of showing that that distinction is entitled to considerable weight, to refer to the case of Hildreth's Heirs v. McIntire's Devisee, where certain persons, being no doubt de facto officers, claimed that there could not be a de facto court, although there might be a de facto judge or a de facto officer. And we say, by the same reasoning, there cannot be an unlawful de facto electoral college composed of mere pretenders to that office, who have no right. In this connection you have exactly the case that was before the court there, and which, perhaps, exists in other states of this Union about this time. You have the case of two distinct bodies existing at the same time, one rightful and the other wrongful; I mean formal bodies, attempted to be created. The Tilden electors who, though they had no documentary evidence to establish their title, had actually been elected, if our evidence is to be believed, convened their electoral college, performed every ceremony that the constitution of the United States enjoined upon them, performed every

1 J. J. Marsh. 206.

ceremony that the laws of the United States enjoined upon them, and that it was possible to perform, failing only in this: that they did not obtain the certificate of the governor. They met; they constituted a college; they acted; and they sent forward their votes. Thus you have two rival bodies acting at, to be sure, the right time and in the right place, as prescribed by all laws bearing upon this subject; two rival colleges, one of which was composed of persons truly elected, and the other of which was composed of persons who had no right, but only the mere color of pretense of right,-who were usurpers, as has been ascertained in one form, and will be ascertained in any other that will be satisfactory to you, if you will permit us to present the evidence.

This, then, is the actual condition of this case. The constitution prescribes no forms save such as have been complied with by the Tilden electors. The laws of congress prescribe no forms that were not complied with by the Tilden electors, save and except only that they could not obtain the governor's certificate; and it is pretty much conceded, I think, that the governor's certificate is not absolutely indispensable, and might be gainsaid and contradicted, even if it had been given. So, then, in this case of rivalry between these two sets of electors, it appears to me that we present the best legal title. That we have the moral right is the common sentiment of all mankind. It will be the judgment of posterity. There lives not a man, so far as I know, upon the face of this earth, who, having the faculty of blushing, could look an honest man in the face and assert that the Hayes electors were truly elected. The whole question, therefore, is whether, in what has taken place, there has been such an observance of form as is totally fatal to justice, and beyond the reach of any curative process of any description.

RICHARD HENRY DANA.

[Richard Henry Dana was born in Cambridge, Mass., 1815. He was educated at Harvard College, where he was graduated in 1837. As a remedy for an affection of the eyes, which compelled him to suspend study, he shipped before the mast as a seaman on board the brig "Pilgrim,' of Boston, for a voyage around Cape Horn. Upon his return he published his experiences in the well-known "Two Years before the Mast," which is generally recognized as the best narrative of the sailor's life ever published. It has been adopted by the English board of admiralty for distribution among seamen, and has been translated into several foreign languages. Dana studied law with Judge Story, and was admitted to the bar in 1840. He soon took high rank, and conducted a large practice. In 1841 he published "The Seaman's Friend," an elementary work on sea usages and laws. This, also, has been reprinted in England. In 1859 he published "To Cuba and Back." In 1859-60 he made a trip around the world. In 1866 he published his scholarly edition of Wheaton's International Law, and in the following year lectured on that subject in the Harvard law school. He ran for congress in 1868, but was defeated by Benjamin F. Butler. In 1876 he was nominated by President Grant as minister to England, but, through partisan intrigues, the nomination was rejected by the senate. In 1878 he went abroad for the purpose of pursuing his studies on international law, with a view to writing a treatise on that subject, but his health gave way, and he died at Rome, January 7, 1882. His life has been written by Mr. Charles Francis Adams.]

In the world of letters it is well known that the author of "Two Years Before the Mast" possessed literary powers of a high order. By a smaller circle, Dana was recognized as a learned and successful lawyer. As was natural under the circumstances, his classic story of life at sea brought him, at an early day, an extensive practice in maritime law. The reports of the United States court for the first judicial circuit during his time display abundant evidence of his learning and assiduous application. In the case of The Orkney, for instance, the court, adopting his argument, developed for the first time, on philosophical principles, the respective courses of steam and sail vessels meeting at sea. Again, at the height of the Civil War, when the momentous issues involved in the Prize Cases were carried before the supreme court of the United States, Dana was called upon by the government to represent its interests, and it was largely to his profound

argument that a result favorable to the government was due. When the strain of intense application to his extensive practice had made such inroads upon his health that he was compelled, at a comparatively early age, to retire from active labors, his thoughts. turned again towards the sea, and his final legacy to the profession was his learned edition of Wheaton's International Law. His comprehensive and discriminating notes to that work, which have been universally recognized as one of the most valuable commentaries ever written on the subject, were designed to be merely preliminary to a complete treatise; but his labors at the bar had ruined his health beyond recovery, and he was never able to carry out his plan.

In many respects Dana was admirably qualified for forensic adNot well fitted to deal with clients, somewhat contemptuous of details, incapable of popularity, he was not particularly fitted to succeed as an attorney; but, as Judge Lowell said of him, when a great cause demanded lofty powers and unusual exertions, he rose to the occasion, and commanded the admiration of friends and opponents alike by the largeness of his views, the acuteness of his suggestions, and his brilliant eloquence. It was neither in his grasp of principles, nor in his command of technical learning (though deficient in neither), that his strength lay, but in the activity and alertness of his mind. In imaginative faculty and power of copious illustration he was highly endowed. He had emphatically the power of seeing things clearly himself, and then making others see them in the same light. His courage and tenacity and resources were displayed on many a hard-fought field; notably in the Dalton divorce case, in which, single handed, he contended against Rufus Choate and H. F. Durant, then accounted the strongest combination at the Boston bar, and won ten of the twelve jurors to his side. His mental characteristics rendered it impossible for him to be terse. He required scope and play for his imagination. The business-like methods now prevailing in the courts would not have been to his taste, nor sufficient for him. According to his theory, no case could be presented to a jury too clearly or too elaborately. An argument or illustration might convince eleven men, but fail to impress the twelfth. He believed, therefore, that a case should be turned over and over, and presented in all the different aspects that imagination could suggest. In respect to method, a greater contrast could not be found than Dana and Curtis; and in a letter to his wife, written in 1872, Dana relates an exchange of compliments between Curtis and himself in the supreme court of the United