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   THE VOTE
   THAT
   MADE THE PRESIDENT.

   BY
   DAVID DUDLEY FIELD.

   NEW YORK:
   D. APPLETON & COMPANY,
   549 & 551 BROADWAY.
   1877.




COPYRIGHT BY DAVID DUDLEY FIELD. 1877.




THE VOTE THAT MADE THE PRESIDENT.


At ten minutes past four o'clock on the second morning of the present
month (March, 1877), the President of the Senate of the United States,
in the presence of the two Houses of Congress, made this announcement:
"The whole number of the electors appointed to vote for President and
Vice-President of the United States is 369, of which a majority is 185.
The state of the vote for President of the United States, as delivered
by the tellers, and as determined under the act of Congress, approved
January 29, 1877, on this subject, is: for Rutherford B. Hayes, of Ohio,
185 votes; for Samuel J. Tilden, of New York, 184 votes;" and then,
after mentioning the votes for Vice-President, he proceeded: "Wherefore
I do declare, that Rutherford B. Hayes, of Ohio, having received a
majority of the whole number of electoral votes, is duly elected
President of the United States for four years, commencing on the fourth
day of March, 1877."

Mr. Hayes was thus declared elected by a majority of one. If any vote
counted for him had been counted on the other side, Mr. Tilden, instead
of Mr. Hayes, would have had the 185 votes; if it had been rejected
altogether, each would have had 184 votes, and the House of
Representatives would immediately have elected Mr. Tilden. One vote,
therefore, put Mr. Hayes into the presidential office.

To make up the 185 votes counted for him, 8 came from Louisiana and 4
from Florida. Whether they should have been thus counted is a question
that affects the honor, the conscience, and the interests of the
American people. There is not a person living in this country who has
not a direct concern in a just answer. Not one will ever live in it
whose respect for this generation will not depend in some degree upon
that answer.

The 12 votes were not all alike. Some had one distinction, some another.
But, not to distract attention by the discussion of several transactions
instead of one, and because one in the present instance actually
determined the result, I will confine my observations to a single vote.
For this purpose let us take one of the votes from Louisiana, that, for
instance, of Orlando H. Brewster.

Brewster was not appointed an elector, inasmuch as he did not receive a
majority of the votes cast by the people of Louisiana, and inasmuch also
as he could not have been appointed if he had received them all.


HE DID NOT RECEIVE A MAJORITY OF THE VOTES.

It would be a waste of time and patience to go through the testimony
taken by the two Houses of Congress for their own information, before
they consented to call in the advice of the Electoral Commission. The
evidence of wrongs on both sides, and the irreconcilable contradictions
of witnesses, made President Seelye and Mr. Pierce, of Massachusetts,
declare it to be impossible for them to reach a satisfactory conclusion
upon the facts, and compelled them to break away from their party, and
refuse to abide by the advice of the Commission. There are certain
things, however, which we know beyond dispute, or about which there is
and can be no controversy, and these only will I mention. We know that
the number of votes cast in Louisiana for the Tilden electors, taking
the first name on the list as representing all, was 83,723, but that the
certificate of the Returning Board put them at 70,508, turning Mr.
Tilden's majority of more than 6,000 into a majority for Mr. Hayes; and
we know that the reduction was made by throwing out more than 13,000
votes of legal voters voting legally for Mr. Tilden, and that more than
10,000 of these were thrown out upon the assumed authority of a statute
of Louisiana, which in terms gave the board power to throw out votes,
upon examination and deliberation, "whenever, from any poll or
voting-place, there shall be received the _statement of any supervisor_
of registration _or commissioner_ of election, in form as required by
section 26 of this act, _on affidavit of three or more citizens_, of any
riot, tumult, acts of violence, intimidation, armed disturbance,
bribery, or corrupt influences, which prevented, or tended to prevent, a
fair, free, and peaceable vote of all qualified electors entitled to
vote at such poll or voting-place."

Whether the statute itself has its warrant in the Constitution is a
question not necessary now to be considered. For my part, I cannot see
the authority for taking out of the ballot-boxes the ballots of lawful
voters and throwing them away because other voters did not vote,
whatever may have been the cause of their not voting, whether they were
frightened, foolish, or perverse. I cannot for the life of me perceive
that the State can be held to have elected persons whom it did not in
fact elect, because it is conjectured, or even made probable, that if
voters who kept away from the polls had in fact attended and voted, they
would have made a majority for these persons.

Without going into that question, however, and assuming for the sake of
the argument that the statute had all the authority of the most clearly
valid statute that was ever passed, it is certain that the only ground
upon which a vote could have been thrown out, for intimidation or other
corrupt influence, was the statement of a supervisor of registration or
commissioner of election, founded upon the affidavits of three citizens.
When, however, the vote of Louisiana was before the Electoral
Commission, the following offer was made by counsel:

     "We offer to prove that _the statements and affidavits_ purporting
     to have been made and forwarded to said Returning Board in
     pursuance of the provisions of section 26, of the election law of
     1872, alleging riot, tumult, intimidation, and violence, at or near
     certain polls, and in certain parishes, _were_ falsely fabricated
     and _forged_ by certain disreputable persons _under the direction_,
     and with the knowledge, _of said Returning Board_, and that said
     Returning Board, knowing said statements and affidavits to be false
     and forged, and that none of the said statements or affidavits were
     made in the manner or form or within the time required by law, did
     knowingly, willfully, and fraudulently, fail and refuse to canvass
     or compile more than 10,000 votes lawfully cast, as is shown by the
     statements of votes of the Commissioners of Election."

This offer the Commission rejected by a vote of 8 to 7.

In the Commission Mr. Abbott moved the following:

     "_Resolved_, That testimony tending to show that the so-called
     Returning Board of Louisiana had no jurisdiction to canvass the
     votes for electors of President and Vice-President is admissible."

This was rejected by the same vote.

In explaining the reason of their decision in the case, the Commission
used the following language:

     "And the Commission has, by a majority of votes, decided, and does
     hereby decide, that it is not competent, under the Constitution and
     the law as it existed at the date of the passage of said act, to go
     into evidence _aliunde_, the papers opened by the President of the
     Senate, in the presence of the two Houses, to prove that other
     persons than those regularly certified to by the Governor of the
     State of Louisiana, on and according to the determination and
     declaration of their appointment by the returning officers for
     elections in the said State prior to the time required for the
     performance of their duties, had been appointed electors, or by
     counter-proof to show that they had not; or that the determination
     of the said returning officers was not in accordance with the truth
     and the fact, the Commission, by a majority of votes, being of
     opinion that it is not within the jurisdiction of the two Houses of
     Congress, assembled to count the votes for President and
     Vice-President, to enter upon a trial of such questions."

Whether, therefore, the decisions of the Commission or the reasons given
for them be sound or unsound, it may be assumed, that _Brewster did not
receive a majority of the votes cast by the people of Louisiana, and
that the action of the Returning Board_ in cutting down the majority of
his competitor, so as to reduce it below his, _was taken without
jurisdiction, and upon the pretense of statements and affidavits which
they themselves had caused to be forged_.


BREWSTER COULD NOT HAVE BEEN APPOINTED ELECTOR IF HE HAD RECEIVED THE
VOTES OF ALL THE PEOPLE OF LOUISIANA.

He had been made Surveyor-General of the United States, for the District
of Louisiana, on the 2d of February, 1874; was recommissioned by
President Grant on the 11th of February, 1875, and is at present
exercising the office. Whether he has ever been out of the office
depends upon the facts now to be mentioned. Eight or nine days after the
election of November 7, 1876, at which he was a candidate on the
Republican electoral ticket, there was received at the Department of the
Interior, from the hands of the President, this letter:

                                           MONROE, _November 4, 1876_.

     DEAR SIR: I hereby tender my resignation of the office of
     Surveyor-General of the State of Louisiana, with the request that
     it be accepted immediately. With many thanks for your kindness,

                                       I remain, yours respectfully,
                                                       O. H. BREWSTER.

     U. S. GRANT, _President United States_.

When the letter was written does not appear. It is certain that Brewster
was acting as Surveyor-General on the 10th of November.

On the 16th of November a letter was addressed to the Commissioner of
the General Land-Office, as follows:

                                       DEPARTMENT OF THE INTERIOR,}
                                  WASHINGTON, _November 16, 1876_.}

     SIR: I have received the resignation of Mr. Orlando H. Brewster,
     Surveyor-General of Louisiana, which he has requested may take
     effect immediately. Please inform Mr. Brewster that his resignation
     has been accepted by the President, to take effect November 4th
     instant, that being the date of his letter of resignation to this
     Department.

                                       Very respectfully,
                                          Z. CHANDLER, _Secretary_.

At what time, if ever, the Commissioner informed Brewster of the
acceptance of his resignation we do not know, but it could not have been
earlier than the 20th of November.

On the morning of the 6th of December, the four men who assumed to act
as the Returning Board of Louisiana filed in the office of the
Secretary of that State a certificate that Brewster, with seven other
persons, had been appointed presidential electors. There was then on the
statute-book of Louisiana this enactment:

     "If any one or more of the electors chosen by the people shall fail
     from any cause whatever to attend at the appointed place at the
     hour of 4 P.M. of the day prescribed for their meeting, it shall be
     the duty of the other electors immediately to proceed by ballot to
     fill such vacancy or vacancies."

What Brewster did is thus told by Kellogg, one of the Hayes electors, on
his examination at Washington in January:

     "_Q._ Did Levissee and Brewster vote at the meeting of electors?

      _A._ I believe they did.

      _Q._ Was not an appointment made for somebody to fill Brewster's
     place?

      _A._ I believe that that is the case.


      _Q._ Who was appointed to fill Brewster's place?

      _A._ Brewster himself.

      _Q._ The same man?

      _A._ The same man.


      _Q._ Were you also instructed by these committees (National and
      Congressional Republican Committees) how to dispose of Brewster
      and Levissee?

      _A._ My recollection is that some one of the electors had
      received a letter suggesting that in case of a vacancy or in case
      of the absence of Levissee and Brewster, they should be chosen in
      their own places. That is my recollection.


      _Q._ And yet they absented themselves from the electoral college,
      and you filled their vacancies with themselves?

      _A._ They were absent from the college when the college met, and we
      filled their vacancies by themselves."

Being thus installed, they voted for Mr. Hayes within an hour after they
were chosen to fill their own vacancies; and three days afterward
Brewster addressed the following letter to the President:

                            NEW ORLEANS, LOUISIANA, _December 9, 1876._

     SIR: I respectfully apply to be appointed Surveyor-General for the
     District of Louisiana. Commendations from prominent gentlemen will
     be submitted to your Excellency to justify the appointment.

                       I have the honor to remain
                                  Your very obedient servant,
                                            ORLANDO H. BREWSTER.

     U. S. GRANT, _President United States, Washington, D. C._

The reappointment was made on the 5th of January, 1877. The Chief of the
Appointment Division in the Interior Department was asked and testified
about it as follows:

     "_Q._ Who recommended his appointment in January?

      _A._ I think the probability is (although there is no evidence of
      it) that there was no recommendation, further than his own
      application to the President.

      _Q._ You do not know of any recommendation?

      _A._ I do not know of any.

      _Q._ There is none on file?

      _A._ There is none on file to the best of my knowledge. There is
      none on file in the Interior Department."

Who does not perceive the shallow trick by which Brewster pretended to
have divested himself of his Federal office that he might vote; only to
be reinvested as soon as he had voted?

The letter of resignation, with its false date, and its pretended
acceptance, to take effect as of a time past, were evident shams to make
it appear that he was not holder of a Federal office when he was
elected; his affecting to be absent on the 6th of December, and coming
in immediately to fill the vacancy occasioned by his own absence, in
order to make it appear that his appointment was made on that 6th of
December, instead of the 7th of November, and his barefaced application
on the third day thereafter to be reappointed to the Federal office,
from which he could not possibly have perfected his resignation before
the 20th of November--all these were but so many contrivances to evade
the highest enactment known to our civil polity. In the eye of reason
and of law, he acted during the whole period under that influence of
office which it was the design of the Constitution to prevent, and he
must have entered more thoroughly into the work of his Federal master
than if he had not gone through the form of resigning, inasmuch as that
placed him, more than before, in his master's power.

Let us now place side by side the commandment of the Constitution and
the resolution of the Electoral Commission:

   COMMANDMENT.                       | RESOLUTION.
                                      |
   "_No_ Senator or Representative,   | "The Commission, by a majority
   or _person holding an office of    | of votes, is also of the opinion
   trust or profit under the United   | that _it is not competent to prove
   States, shall be appointed an      | that any of said persons, so
   elector._"                         | appointed electors_ as aforesaid,
                                      | _held an office of trust or
                                      | profit under the United States
                                      | at the time when they were
                                      | appointed_, or that they were
                                      | ineligible under the laws of the
                                      | State, or any other matter
                                      | offered to be proved _aliunde_
                                      | the said certificates and
                                      | papers."

It would be unjust to cast upon the Electoral Commission the blame of
all the wrong that has been practised in this presidential count. The
Commission was but a council of advice, which Congress might have taken
or not, as it pleased, the only condition being that, in order to reject
it, both Houses must have agreed. The responsibility of the final
decision lay, after all, upon Congress, or rather, upon the Senate,
which voted throughout to follow the Commission.

       *       *       *       *       *

The facts thus briefly recited present certain questions--moral,
political, and legal--which cannot be considered too soon for our good
repute and our self-respect.


THE MORAL QUESTION.

Whatever differences of opinion there may be about the political and
legal questions involved, there can be none about the moral. The
presidential office is the gift of the people of the several States, of
their own free-will, expressed according to the laws. A falsification of
that will is an offense against the State where it is committed, and
against all the States. If the falsification is beyond the reach of the
law, it is not beyond the reach of the conscience. A robbery is none the
less a robbery because it is beyond the range of vision or the arm of
justice. If the possessor of an estate has entered through the forgery
of a record or the spoliation of a will, which although believed by
every neighbor is beyond judicial proof, all the world pronounces his
possession fraudulent, even though he scatters his wealth in charities
and gathers many companions around his luxurious table. The example is
corrupting, but it is against the eternal law of justice that the act
should be respected or the actors continue forever to prosper.

It is no answer to these observations to say that frauds have been
practised on the other side. Unhappily there is too much reason to
believe that neither party is free from practices which are at once a
scourge and a dishonor. Neither has the disgraceful monopoly of such
practices, whichever may have the bad preëminence. But this is certain:
one wrong neither justifies nor palliates another.

There is no set-off known to the moral law. Because A has defrauded B,
that is no reason why B should defraud A. If it were so, society would
go on forever in a compound ratio of crime. The first breach of the law
would furnish excuse for the second, and their progeny would follow in
sad progression to the end of time. This is not, however, the moral
condition of the world. The _lex talionis_ has been abolished by the law
of civilization and the higher law of the gospel.

In this case of Louisiana there can be neither excuse nor palliation for
the misconduct of the Returning Board.

On the 10th of November, President Grant telegraphed to the General of
the Army instructions about troops in Louisiana and Florida, and added
that "_no man worthy of the office of President should be willing to
hold it if counted in or placed there by fraud_. Either party can afford
to be disappointed in the result. _The country cannot afford to have the
result tainted by the suspicion of illegal or false returns._" And
again: "The presence of citizens from other States, I understand, is
requested in Louisiana, to see that the Board of Canvassers makes _a
fair count of the vote actually cast_. It is to be hoped that
representative and fair men of both parties will go."

Did the President of that day misrepresent his party, or his successor,
or has the party changed and the successor also? Had the virtuous
impulses of November faded away in February? Was there a change of heart
or a change of opportunity? Neither Congress nor the Electoral
Commission could give an _honest_ title, without investigating the
honesty of the transactions on which the title was founded; and yet a
President has been installed, in the face of rejected offers to prove
frauds, the grossest, the most shameless, and the most corrupting, in
all our history.

Then what was the object of the committees of each House of Congress,
sent into the disputed States? Was it to blind the people? Was it to
conceal a meditated fraud? On the very first day of the session,
December 4th, Mr. Edmunds, in the Senate, moved certain resolutions, of
which this was one:

     "_Resolved further_, That the said committee" (the Committee on
     Privileges and Elections) "be, and is hereby, instructed to inquire
     into the eligibility to office under the Constitution of the United
     States of any persons alleged to have been ineligible on the 7th
     day of November last, or to be ineligible as electors of President
     and Vice-President of the United States, to whom certificates of
     election have been, or shall be, issued by the Executive authority
     of any State, as such electors, and _whether the appointment of
     electors_, or those claiming to be such, in any of the States, _has
     been made either by force, fraud, or other means otherwise than in
     conformity with the Constitution and laws of the United States, and
     the laws of the respective States_; and whether any such
     appointment or action of any such elector has been in any wise
     unconstitutionally or unlawfully interfered with; and to inquire
     and report whether Congress has any constitutional power, and, if
     so, what and the extent thereof, in respect of the appointment of
     or action of electors of President and Vice-President of the United
     States, or over returns or certificates of votes of such electors,"
     etc.

Was all this parade of committees sent hither and thither, summoning
witnesses from far and near, committing the recusant to prison, and
looking into State archives; was all this a mock show, a piece of
pantomime, for the amusement of the lookers-on, while conspirators were
plotting how to conceal what they pretended to be wishing to discover?
Taken all in all, the sounding profession, the bustling search, and the
studied concealment, make a drama, half comedy and half tragedy, the
like of which this generation has not seen till now, but the like of
which it and its successors may see many times, if the audience does not
hiss the play, and remit the actors to the streets.

It has been objected, as a reason for not receiving offered evidence,
that there was not time to take it before the 4th of March. How was that
known? Perhaps it could have been taken in an hour. Why was not the
question asked, how much time the evidence would take, before it was
excluded? If the certificate was false, and the falsehood was
susceptible of proof, every effort possible should have been made to
receive it, and receive it all. It is not commonly accepted as good
reason for not searching after the truth, that the search may be
difficult. Nor is it an unusual occurrence to require an argument or
decision to be made within a period limited. Ten minutes' speeches in
Congress, two hours' argument in the Supreme Court, a jury shut in a
room until they agree upon a verdict, a court required by statute to
render its decision by a day fixed, are not so strange as to be
remarkable, or found in practice so embarrassing as to cause the
practice to be abandoned.

Nor is it any answer to say that, if the offer of evidence had been
accepted, the proof would have fallen short of the offer. That does not
lie in the mouth of any one to say, who excluded the evidence, or
justified its exclusion. The characters of the counsel who made the
offer, and of the commissioner who moved its acceptance, are a guarantee
not only of their good faith, but of a reason for their belief. No man
has any right to deny that the proof offered would have been made good,
who refused the opportunity. They who closed their ears should in
decency keep their mouths shut. But it was not the counsel and the
commissioner alone who believed that the proof offered would be made
good. Every one who witnessed the examinations in Washington, every one
who read the testimony taken by the Congressional Committees in
Louisiana, must have been satisfied that the conduct of the Returning
Board was throughout unlawful, wicked, and shocking, to the last degree.

The title of the acting President, however valid in law, if valid at
all, is tainted with fraud in fact. There was fraud in certifying that
Brewster had received a majority of the votes of Louisiana, and fraud in
attempting to evade that part of the Constitution which pronounced his
disqualification. When the Electoral Commission advised Congress, and
Congress accepted, by not rejecting, the advice, that fraud could not be
proved, that advice being but the equivalent of saying that fraud was of
no consequence; when it advised that the incompetency of the Returning
Board, for want of jurisdiction, could not be proved, such proof being
but the equivalent of proof that the pretended board was not a board at
all; when it advised that the forgery, by direction of the board, of the
statements and affidavits on which it pretended to act as true could not
be proved, that proof being but the equivalent of proof that the
pretended statements and affidavits were not statements and affidavits
at all; when it advised that the barrier raised by the Constitution
against the appointment of a Federal officer to choose a Federal
President, was not a barrier at all--the moral sense of the whole
American people was shocked. No form of words can cover up the
falsehood; no sophistry can hide it; no lapse of time wash it out. It
will follow its contrivers wherever they go, confront them whenever they
turn, and as often as one of them asks the suffrages of his countrymen,
he may expect to hear them reply, "Why do you reason with us, why seek
to persuade us into giving you our votes, you that have taught us such a
contempt for votes, that one fraudulent certificate is better than ten
thousand of them?"


THE POLITICAL QUESTION.

The advice of the Commission, with the consequent action of Congress,
was a virtual affirmation of this proposition, that if on the morning of
the 6th of December the Federal general commanding in Louisiana had
surrounded the State-House with soldiers, and marching in eight of his
captains, had compelled the Returning Board to certify their
appointment as electors, and the Governor to add his certificate,
Congress and the country would have been obliged to accept the votes of
these captains as the constitutional and lawful votes of Louisiana
electors. Whoever supposes that the union of these States can endure
under such an interpretation of their fundamental law, must be endowed
with credulity beyond the simplicity of childhood. The doctrine is an
open invitation to transgression and usurpation. The judicious
disposition of a few troops in the capitals of disputed States, on the
day of the electoral vote, will perpetuate an Administration just so
long as the audacity of a President, or the cupidity of his
office-holders, may find it desirable; unless, indeed, it be found, as
is most likely, that the ways of fraud are cheaper, easier, and less
palpable than the ways of force.


THE LEGAL QUESTION.

_As to the conclusiveness of the Governor's and canvassers'
certificates._ The doctrine of the majority of the Commission, and of
the Senate, is, that the certificate of the Governor "_on and according
to the determination and declaration_" of the State canvassers, cannot
be shown to be false, though it may have been obtained by force or
fraud. This doctrine admits that the truth of the _Governor's_
certificate can be inquired into, else why the qualification that it
must be "_on and according to_" the canvasser's certificate. It is said
to be good only when in such accord; therefore, when not in accord, it
is good for nothing. We may, then, dismiss the Governor's certificate as
of no account, and to be left therefore out of further discussion. The
substance of the doctrine is, that the _certificate of the State
canvassers_ cannot be contradicted.

This language must, of course, be understood, as used in reference to
the question at that time depending; that is to say, whether evidence to
contradict or annul the certificate was then and there admissible. It
had already been decided in the Florida case that no action of the State
authorities, after the electors had voted, could affect the validity of
the vote. Whether such action before the vote would have been of any
avail was not decided, and will never be decided, unless a radical
change is made in the laws, since, according to present legislation, the
vote of the electors treads fast on the heels of their appointment. In
Florida, they were declared appointed at three o'clock in the morning,
and they voted at twelve, just nine hours afterward. In Louisiana the
interval was even less. To suppose that any State action would or could
be had in such an interval, or in any interval possible under present
laws, would be as wild as to suppose that counting in a President by
fraud will not be followed by imitators at future elections.

Taking the doctrine, however, precisely as it was applied in the
instance of Louisiana, it is this: that the certificate of State
canvassers cannot be impeached by evidence showing either that they had
no jurisdiction to canvass the electoral vote at all, or that they had
no jurisdiction to throw away votes that were actually cast, inasmuch as
the power to throw away came into existence only when affidavits were
laid before them, and there were no affidavits except such as they had
caused to be forged, which, in the eye of the law, were not affidavits
at all.

One would say that such a doctrine, held up in its nakedness, need
hardly be attacked, for no man, not maddened by the fanaticism of party,
would be found willing to defend it; yet if not defended, the
disposition of the Louisiana case must be pronounced as unsound in law
as it was injurious in policy and offensive in morals. But I go further,
and deny the conclusiveness of the canvassers' certificate under any
circumstances. Suppose the question to be put thus: Can the certificate
of State canvassers, acting within the scope of their authority, be
questioned by evidence of mistake, fraud, or duress; what should be the
answer? Most certainly it can, should be answered.

The statutes of the State may or may not have declared the effect of the
certificate. In the case of Louisiana, this was the only statute
relevant:

     "The returns of the elections thus made and promulgated shall be
     _prima-facie_ evidence in all courts of justice and before all
     civil officers, until set aside after a contest according to law,
     of the right of any person named therein to hold and exercise the
     office to which he shall by such return be declared elected."

Whatever doubt may have been expressed or felt whether this statute
applied to the canvassers of a presidential election, or whether the
words _prima facie_ really meant _prima facie_, or whether "courts of
justice," and "civil officers," included the Electoral Commission and
the two Houses of Congress, there can be no doubt that "the returns of
the elections thus made and promulgated" do not include returns
canvassed without jurisdiction, or made under cover of pretended
affidavits which the returning officers themselves caused to be forged.

But, passing from this view of the subject, although this is sufficient
to dispose of Brewster's pretensions, let us suppose a stronger
case--the strongest supposable--that of a State Legislature directing
not only the manner in which electors shall be appointed, but directing
also that the certificate of the State canvassers shall be conclusive
evidence that the State has appointed in the manner directed.

Because the Constitution provides that electors shall be appointed by
the State, in the manner directed by its Legislature, it is thence
inferred that the State must furnish the evidence of the appointment,
and of course that none can be received except that which the State has
furnished. And this is said to be the true States-rights doctrine. It is
a strange sight, that of gentlemen clamoring for State rights who will
not allow the people of Louisiana and South Carolina to take care of
themselves; who are even now debating at Washington whether they shall
not order new elections in those States, or which of two State
governments they shall put up and which put down, and who since the war
have treated the South as if no States were there, parceling it into
military districts, and denying recognition until constitutional
amendments were ratified. Their assertion of the conclusiveness of false
and fraudulent canvassers' certificates, on the pretense of upholding
State rights, should seem to be thrown in our faces by way of bravado,
unless it be meant, indeed, for burlesque masking hypocrisy. But if the
sight were not strange, and those gentlemen had been all along as
careful of the rights of the States as they are of their own places,
there is nothing in the claim for the conclusiveness of canvassers'
certificates which receives support from the doctrine of State rights.
On the contrary, the rights of the States are best preserved by fencing
them against force or fraud, by leaving them untrammeled in their own
action, and leaving us untrammeled in finding out what that action has
been. No rights are ever lost by letting in the light.

A certificate can be conclusive evidence of the States' action, only
when the act and the certificate are identical. If the Constitution had
provided that there should be sent from each State a certificate signed
by such persons as the Legislature might designate, declaring who should
cast the electoral votes, then the only inquiry that could have been
made at Washington would have been, whether the certificate sent up was
so signed and the persons therein mentioned had voted; but the
Constitution has provided nothing of the kind. It has provided that the
State shall appoint in the manner directed by its Legislature, and the
inquiry thereupon to be made at the Capitol is, "Whom has the State
appointed in the manner directed?"

We agree that the State has complete power, within certain limits
regarding the persons who may be appointed, to appoint its electors in
any manner its Legislature may direct, but whether the State has done so
is open to inquiry. Canvassers of votes are not the State, or the
Legislature of the State, and their certificate is nothing but evidence.
Two facts are to be shown: one that the State has acted, and the other
that the act has been in conformity to the directions of the
Legislature. There is nothing in positive law, or in the reason of
things, which, if the fact certified do not exist, requires that its
falsity should not be open to proof.

The Electoral Commission and the Senate read the Constitution as if the
words following in italics were part of it:

     "Each State shall appoint, in such manner as the Legislature
     thereof may direct, a number of electors equal to the whole number
     of Senators and Representatives to which the State may be entitled
     in the Congress; but no Senator or Representative, or person
     holding an office of trust or profit under the United States, shall
     be appointed an elector." _And the certificate of such officers as
     the Legislature of the State may designate shall be conclusive
     evidence, not only that the persons certified were appointed by the
     State, but that they were appointed in the manner directed by its
     Legislature, any mistake, fraud, or duress, of the certifying
     officers to the contrary notwithstanding_.

But the words of the Constitution as they stand do not carry with them
the words in italics, or their substance; and if it had been proposed to
add them when the Constitution was presented to the people, I do not
believe that they would have been accepted.

Had it been suggested to the freemen of Massachusetts or Connecticut
that they should give to the Legislature of another State not only the
right of designating how the electors should be chosen, whose voices
might make a President for them, but also the right to designate a
permanent board, with power to say, in the face of the truth, who had or
had not been chosen, the voices of John Hancock and Oliver Ellsworth
would surely have warned the good people of their native Commonwealths
against so dangerous a proposition.

There is no necessary connection between an appointment and the
certificate of it, unless the two acts are performed by the same
persons. If the appointment of electors for Louisiana had been committed
to the Returning Board, then there might be reason for saying that the
certificate was conclusive, because they appointed when they certified.
But the board had not the power of appointment. That power could not
have been given to them, if the Legislature of Louisiana had so
intended, and it did not so intend.

The power to give a conclusive certificate of appointment--that is, a
certificate that precludes further inquiry--is virtually a power to
appoint, since no one is then permitted to go behind the certificate to
show that there was neither valid appointment nor form of appointment.
Unless, therefore, the Legislature of Louisiana could, under the
Constitution, confer upon the Returning Board power to appoint
presidential electors for Louisiana, it could not confer upon it power
to give a conclusive certificate of appointment. The constitution of
this Returning Board is known to us all. It was a permanent body,
holding for an undefined period, or for life, consisting of four
persons of one party, when there should have been five, of different
parties; and the four had persistently refused for years to select a
fifth. To pretend that such a body was, or could lawfully be, empowered
to appoint eight electors for the people of Louisiana, to match the
eight who were appointed by the people of Maryland, would be simple
effrontery; and most certainly, as I have said, if they could not
appoint, they could not give an incontrovertible certificate of
appointment. The certificate is one thing; the appointment another. The
State appoints and the Legislature directs the manner of appointment,
but neither can make true that which is false.

_Now as to the person appointed._ Brewster was one of the very persons
sought to be excluded by these words of the Constitution: "No Senator or
Representative, or person holding an office of trust or profit under the
United States, shall be appointed an elector." He was, nevertheless,
appointed, and he voted, and his vote made the President. How was this
brought about? The Commission answer, "That it is not competent to prove
that any of said persons so appointed electors as aforesaid held an
office of trust or profit under the United States at the time when they
were appointed." Of course, if it was not competent to prove it, the
fact itself must have been of no importance.

Bentham's "Book of Fallacies" may be enriched, in another edition, with
another fallacy, as remarkable as any he has recorded, to wit, that
prohibition in the American Constitution means prohibition! Talleyrand
was once asked the meaning of non-intervention. "Non-intervention," he
replied, "non-intervention means about the same thing as intervention."
So, in our new constitutional vocabulary, prohibition means about the
same thing as permission.

It was, indeed, mentioned in the course of the argument, though the
Commission does not appear to have thought much of it, that Brewster,
having resigned his Federal office, and come in upon a new appointment,
to fill his own vacant place on the 6th of December, being then both
present and absent, the question of eligibility did not arise. But
enough has been said about this resignation sham. If such a trick had
been played in respect to a note-of-hand of five dollars, there is not a
justice of the peace who would not have denounced the trick, as
conferring no right and affording no protection.

The people of New York were amused, three or four years ago, with the
feats of a juggler, who dressed one side of him as a man, and the other
as a woman, and who turned about so quickly that he showed himself as
two persons of different sexes in the same instant. Brewster's feat was
not less remarkable: he was at once absent and present; absent that he
might be appointed, and present that he might vote; went through the
whole performance in less than an hour, absenting himself that he might
be called in to be present, presenting himself though absent, voting
ballots and signing certificates, showing himself to be as versatile and
as agile as that master of jugglery.

Upon what theory the Commission held that evidence could not be
received of Brewster's Federal office at the time of his appointment
does not appear. He certainly was in the prohibited category. A marriage
between persons within prohibited degrees is not good, even if
consummated. The prohibited union of two offices in the same person
should not be thought a legal union, simply because it is practised. It
has been said, though the Commission did not say it, that Brewster was
at least elector _de facto_, and his vote was good, whatever may have
been his title. Then why should we trouble ourselves about the returning
officer's certificate? If, as elector _de facto_, his vote was good,
then it was good without the certificate, and all that the Commission
should have looked into was the _fact of voting_, without troubling
themselves about the certificate of anybody or any other evidence of
title. But, in truth, the distinctions between officers _de facto_ and
officers _de jure_ have no application to the present case, and for this
reason, among others, that two persons cannot hold the same office _de
facto_. It is of the essence of a _de facto_ possession of office that
it should be exclusive. The Chancellor of New York said, in a judicial
opinion, more than thirty years ago: "When there is but one office there
cannot be an officer _de jure_ and an officer _de facto_ both in
possession of the office at the same time." This is true even when the
office is a continuing one. Who, for instance, can say which of the
rival Governors in Louisiana or South Carolina at this moment is the
Governor _de facto_? In deciding between them, would not all the world
pronounce this the only question, which is Governor _de jure_? Much more
is it true when the office is temporary, existing but for a moment, even
if the doctrine of a _de facto_ officer can be applied to such an office
at all. In the present case, Brewster went into the State-House and
voted for Mr. Hayes; at the same instant his rival went into the same
State-House and voted for Mr. Tilden. It is absurd to pronounce
Brewster, under such circumstances, an elector _de facto_, so as to make
his vote for that reason good against his rival in the Tilden college,
who was as much an elector _de facto_ as was Brewster, and had this
difference in his favor, that he was elected, and was eligible, while
Brewster, the intruder, was not eligible, and was not elected. The only
returns which went to the Electoral Commission were the double ones,
where rival colleges of electors had acted at the same time in the same
State. In those cases, as already observed, the question of a _de facto_
elector could not arise. There was but one case, that of Wisconsin,
where it could have arisen, and in that there was but a single return,
which, of course, did not go to the Commission.


CONCLUSION.

Although these pages have been occupied with the vote of Brewster in the
electoral college, it should not be understood, that the other seven
votes which were counted from that State, and the four votes counted
from Florida, were any better than his. The one here considered had its
peculiarities; the others had theirs. All of them were tainted, and the
counting in of the President _de facto_ was twelve times fraudulent.
What may be the outcome I do not know. That will depend upon the spirit
of this generation and the spirit of those to follow. It is a
consolation to know that the questions will be reviewed by a tribunal
higher than the Electoral Commission, higher even than the two Houses of
Congress-the American people--from whose judgment there is no appeal but
to the final judgment of history.

NEW YORK, _March 28, 1877_.

       *       *       *       *       *


Transcriber's note


The following changes have been made to the text:

Page 4: "contine" changed to "confine".

Page 7: "recived" changed to "received".

Page 22: "de-facto" changed to "de facto".


All other inconsistencies are as in the original.