Note: Images of the original pages are available through Internet Archive/American Libraries. See http://www. Archive. Org/details/electoralvote187600fielrich THE ELECTORAL VOTES OF 1876: Who Should Count Them, What ShouldBe Counted, and the Remedyfor a Wrong Count. by DAVID DUDLEY FIELD. New York:D. Appleton and Company, 549 & 551 Broadway. 1877. Copyright by D. Appleton and Company, 1877. THE ELECTORAL VOTES OF 1876. WHO SHOULD COUNT THEM, WHAT SHOULD BE COUNTED, AND THE REMEDY FOR A WRONG COUNT. The electoral votes of 1876 have been cast. The certificates are nowin Washington, or on their way thither, to be kept by the President ofthe Senate until their seals are broken in February. The certificatesand the votes of thirty-four of the States are undisputed. Theremaining four are debatable, and questions respecting them havearisen, upon the decision of which depends the election of theincoming President. These questions are: Who are to count the votes;what votes are to be counted; and what is the remedy for a wrongcount? I hope not to be charged with presumption if, in fulfilling myduty as a citizen, I do what I can toward the answering of thesequestions aright; and, though I happen to contribute nothing towardsatisfactory answers, I shall be excused for making the effort. The questions themselves have no relation to the relative merits ofthe two candidates. Like other voters, I expressed my own preferenceon the morning of the election. That duty is discharged; another dutysupervenes, which is, to take care that my vote is counted and allowedits due place in the summary of the votes. Otherwise the votingperformance becomes ridiculous, and the voter deserves to be laughedat for his pains. His duty--to cast his vote according to hisconscience--was clear; it is no less his duty to make the vote felt, along with other like votes, according to the laws. The whole duty of a citizen is not ended when his vote is delivered;there remains the obligation to watch it until it is duly weighed, inadjusting the preponderance of the general choice. Whatever may be theultimate result of the count, whether his candidate will have lost orwon, is of no importance compared with the maintenance of justice andthe supremacy of law over the preferences and passions of men. It concerns the honor of the nation that fraud shall not prevail orhave a chance of prevailing. If a fraudulent count is possible, it isof little consequence how my vote or the votes of others be cast; forthe supreme will is not that of the honest voter, but of the dishonestcounter; and, when fraud succeeds, or is commonly thought to havesucceeded, the public conscience, shocked at first, becomes weakenedby acquiescence; and vice, found to be profitable, soon comes to betriumphant. It is of immeasurable importance, therefore, that weshould not only compose the differences that, unfortunately, havearisen, but compose them upon a basis right in itself and appearing tobe right also. WHO SHOULD COUNT THE VOTES? This is the first question. What is meant by counting? In one sense, it is only enumeration, an arithmetical operation, which in thepresent instance consists of addition and subtraction. In anothersense it involves segregation, separation of the false from the true. If a hundred coins are thrown upon a banker's counter, and his clerkis told to count the good ones, he has both to select and toenumerate. He takes such as he finds sufficient in metal and weight, and rejects the light and counterfeit. So when the Constitutionordains that "the votes shall then be counted, " it means that the trueones shall be counted, which involves the separation of the true fromthe false, if there be present both false and true. In regard to theagency by which this double process is to be performed, the words ofthe Constitution are few: "The President of the Senate shall, in thepresence of the Senate and House of Representatives, open all thecertificates, and the votes shall then be counted. " What would onetake to be the meaning of these words, reading them for the firsttime? It is, that somebody besides the President of the Senate is tocount, because, if he was to be the counting officer, the languagewould naturally have been that _the President of the Senate shall openall the certificates and count the votes_. There must have been areason for this change of phraseology. It should seem to follow, fromthese words alone, that, whoever is to count, it is not the Presidentof the Senate. It should seem also to follow, that the counting is tobe done, not in the presence of Senators and Representatives asindividuals, but in the presence of the two Houses as organizedbodies. If their attendance as spectators merely was intended, theexpression would naturally have been, in the presence of the Senatorsand Representatives or so many of them as may choose to attend. Thepresence of the Senate and House means their presence as the twoHouses of Congress, with a quorum of each, in the plenitude of theirpower, as the coördinate branches of the legislative department of theGovernment. And inasmuch as no authorities are required to be presentother than the President of the Senate and the two Houses, if theformer is not to count the votes, the two Houses must. The meaning which is thus supposed to be the natural one has beensanctioned by the legislative and executive departments of theGovernment, and established by a usage, virtually unbroken, from thefoundation of the Government to the present year. The exhaustive publication on the Presidential Counts, just made bythe Messrs. Appleton, leaves little to be said on this head. The sole exception suggested, in respect to the usage, is theresolution of 1789, but that is not really an exception. We have notthe text of the resolution. We know, however, that there was nothingto be done but adding a few figures. There was no dispute about asingle vote, as all the world knew. But taking the resolution to havebeen what the references to it in the proceedings of the two Houseswould imply, it meant only that a President should be chosen for thatoccasion only. The purpose was not to define the functions of anyofficer or body, but to go through the _ceremony_ of announcing whatwas already known, and to set the government going. No decisionsbetween existing parties were to be made; no selection of true votesfrom false votes, but only an addition of numbers. Individual membersof Congress have undoubtedly in a few instances expressed differentviews, but these members have been few, and they have always been in ahopeless minority. If any one can read the debates, the bills passedat different times through one House or the other, the jointresolutions adopted, and the accounts of the votes from time to timereceived or rejected, and doubt that the two Houses of Congress haveasserted and maintained, from 1793 until now, their right to accept orreject the votes of States, and of individual electors of States, allthat I can say is, that he must have a marvelous capacity of doubting. He must ignore uniform practice as an exponent of constitutions, andset up his individual misreading of words, reasonably plain inthemselves, against the opinions of almost all who have gone beforehim. The joint resolution of 1865 is of itself decisive, if a solemndetermination of the two Houses of Congress, approved by thePresident, can decide anything. That resolution was in these words: "_Whereas_, The inhabitants and local authorities of the States of Virginia, North Carolina, South Carolina, Georgia, Florida, Alabama, Mississippi, Louisiana, Texas, Arkansas, and Tennessee, rebelled against the Government of the United States, and were in such condition on the 8th day of November, 1864, that no valid election of electors for President and Vice-President of the United States, according to the Constitution and laws thereof, was held therein on said day: therefore-- "_Be it resolved_, by the Senate and House of Representatives of the United States of America, in Congress assembled, That the States mentioned in the preamble to this joint resolution are not entitled to representation in the electoral college for the choice of President and Vice-President of the United States for the term commencing on the 4th day of March, 1864, and no electoral votes shall be received or counted from said States, concerning the choice of President and Vice-President for said term of office. " In approving this resolution President Lincoln accompanied it withthe following message, parts of which I will italicize: "_To the Honorable the Senate and House of Representatives:_ "The joint resolution entitled 'joint resolution declaring certain States not entitled to representation in the electoral college, ' has been signed by the Executive, in deference to the view of Congress implied in its passage and presentation to him. In his own view, however, _the two Houses of Congress, convened under the twelfth article of the Constitution, have complete power to exclude from counting all electoral votes deemed by them to be illegal_, and it is not competent for the Executive to defeat or obstruct that power by a veto, as would be the case if his action were at all essential in the matter. He disclaims all right of the Executive to interfere in any way in the canvassing or counting electoral votes, and also disclaims that by signing said resolution he has expressed any opinion on the recitals of the preamble, or any judgment of his own upon the subject of the resolution. " If this resolution of the two Houses was authorized by theConstitution, there is no ground for maintaining the power of thePresident of the Senate to decide the question of receiving orrejecting votes. For, if he has the power under the Constitution, hecannot waive it, nor can any action of Congress take it away. Theresolution of 1865 had the sanction of each House, was signed by thePresident of the Senate and the Speaker of the House, and was approvedby the President. It should set the question of the power of the twoHouses forever at rest. The joint rule, first adopted in 1865, and continued in force for tenyears, asserted the same control. It should not have been adopted ifthe pretensions now set up for the President of the Senate were offorce; and he might at any time have disregarded it as worthless. Buthe did not disregard it; he did not question it; he obeyed it. The action of the present Houses, moreover, is an affirmance of theirright to eliminate the false votes from the true. Else why thesecommittees of each House, investigating at Washington and in the Northand South? Are all the labor and expense of these examinationsundertaken solely in order that the results may be laid before thePresident of the Senate for _his_ supreme judgment in the premises? Itis safe to say that there is not a single member of either House whowould not laugh you in the face for asking seriously the question. Assuming, then, that the power to decide what votes shall be countedbelongs to the two Houses, how must they exercise it? Here, again, letme take the illustration with which I began, of the coins upon abanker's counter. Let us suppose that, instead of one clerk, two weretold to count them together. When they came to a particular coin uponwhich they disagreed, one insisting that it was genuine and the otherthat it was counterfeit, what would then happen, if they did theirduty? They would count the rest and lay that aside, reporting thedisagreement to their superior. The two Houses of Congress have, however, no superior, except the States and the people. To these therecan be no reference on the instant; and the action of the two Housesmust be final for the occasion. There can be no decision of the Houses if they disagree, and, as noother authority can decide, there can be no decision at all. Thecounting, including the selection, is an affirmative act; and as twoare to perform it, if performed at all, no count or selection can bemade when the two do not concur. Two judges on the bench cannot rendera judgment when there is a disagreement between them. No more can thetwo Houses of Congress. There is here no pretense of alternativepower, playing back and forth between the President of the Senate andthe two Houses. If the former has not power complete and exclusive, hehas none. The result must be that, what the two Houses do not agree tocount, cannot be counted. WHAT VOTES SHOULD BE COUNTED. This is the second question. The votes to be counted are the votes ofthe electors. But who are the electors? The persons appointed by theStates, in the manner directed by their Legislatures respectively. Howis the fact of appointment to be proved? These are the subordinatequestions, the answers to which go to make up the answer to the mainquestion. What are the means of separating the genuine from the counterfeit?Where are the tests by which to distinguish the true votes from thefalse? The words of the Constitution are not many: "Each State shall appoint, in such manner as the Legislature thereof may direct, a number ofelectors, " who shall meet and vote, "make distinct lists of allpersons voted for as President" . . . "and of the number of votes foreach, which list, they shall sign and certify and transmit sealed tothe seat of the Government of the United States, directed to thePresident of the Senate. " _The State_ must appoint, and the appointment must be made _in suchmanner_ as _the Legislature_ thereof may direct. Here are the twoelements of a valid appointment, and they must concur. An appointmentnot made by the State, or not made in the manner directed by itsLegislature, is no appointment at all. There must be _State_ action in the _manner_ directed. If, forexample, an appointment were made by a State authority, such as theGovernor, without the sanction of the Legislature, it would be void. If it were made by the people in mass-convention, but not in a mannerdirected by the Legislature, it would be void also. And if, on theother hand, it were made in such manner as the Legislature haddirected, but not made by the State, it would be equally invalid. Indeed, the Legislature may itself have given a direction incontravention of the State constitution, and thus the direction provea nullity. So, too, the Legislature may have acted in contravention ofthe Federal Constitution, and for that reason its direction may havebeen void. The appointing power is the State, the manner of its actionis prescribed by the Legislature; the valid authority and the validmanner of its exercise must concur, to make a valid appointment. If, therefore, the persons assuming the office are not appointed _bythe State_, and _in the manner_ directed by the Legislature, they arenot electors; that is to say, they are not electors _de jure_;electors _de facto_ they can hardly become, since their functionsexist but for a moment, and with one act they perish. What is anappointment by the State? How can _a State_ appoint? I answer, by thepeople, the corporators of the body politic and corporate, or by oneof the departments of its government, as established by itsconstitution. The power to appoint cannot be renounced or divested. Itmust ever remain in the State, a living power, to be called intoaction at each recurring election. It cannot be delegated, except asthe different powers of the State are by its constitution delegated toits great departments of government. If it were otherwise, it might bedelegated to a foreign prince, and delegated in perpetuity. It is noanswer to say that such a delegation _would_ not be made, the questionis, whether it _could_ be made, without violating the Constitution ofthe country? I insist that it could not; and that if the Legislatureof New York were to authorize our friend the Emperor Alexander, or ourexcellent neighbor the Governor-General of Canada, to appoint thethirty-five presidential electors to which New York is entitled in thesum total of the electoral colleges, and the electors thus appointedwere to receive the certificate of the Governor of New York, and tomeet, vote, and transmit their certificates to Washington, the votesmight be lawfully rejected. Such an occurrence is in the highestdegree improbable; but stranger things than that have happened. TheEmpress Catharine intervened in the election of the kings of Poland, and the interference led to the downfall of the government and theblotting of the country from the map of Europe. Indeed, I venture toexpress my belief, that such an intervention of foreign influencein our elections would have been hardly more startling to theimaginations of our fathers than the spectacle which our own eyes haveseen; federal soldiers removing representatives from the Capitol ofone State, and stationed at the doors of another, to inspect thecertificates of members elected to its Legislature. Not to go abroad, however, for illustrations, let us suppose that theGeneral Court convened in the State-House at Boston were to depute theState of New York or the State of Virginia to appoint electors for theState of Massachusetts, no man would be wild enough to pronounce sucha deputation valid. It should seem to be certain, for a reason hardlyless satisfactory, that the Legislature of Massachusetts could notauthorize the Mayor of Boston or the town council of Worcester toappoint her electors; and, if that be so, and the rule is to prevailthat, in law, what cannot be done directly cannot be done indirectly, it should follow that the State could not delegate to any other agencythe power of appointment. If a body called a returning board be soconstituted as that, in certain contingencies, it may depart from theinquiry what votes have been cast, and cast the votes itself, or by_any sort of contrivance_ do the same thing under a different name, orby a roundabout process, it is, to that extent, an unlawful body underthe Federal Constitution. Assuming, then, that a returning board hasamong its functions that of rejecting the votes in particulardistricts, for the reason either that they were affected by undueinfluence, or that other voters were led by like influence to refrainfrom voting, can such a function be valid under the Constitution ofthe United States? There is no question were of throwing outparticular votes for vices inherent in themselves, such as that theywere illegible, or were cast by disqualified persons, and the like;but the question is of rejecting the votes of a certain number--say athousand voters--either because they were unduly influenced, orbecause another thousand, who might have voted, were, by undueinfluences, prevented from voting at all. Whatever may be the law of a State in respect to the choice of its ownofficers, it seems most reasonable to hold that, under that commonConstitution which governs and provides for all the States alike, whenthe only legitimate inquiry is whom has a particular _State_appointed, in the manner directed by its Legislature, and theLegislature has directed the appointment to be made by a generalelection, that is, by the votes of all qualified persons, the onlyvalid office of a returning board must be to ascertain and declare howthe State has actually voted, not how it might or would have votedunder other circumstances, or, in other words, what is the number oflegal votes actually cast; not how many have been unduly influenced, or how many other votes would have been cast in a different state ofaffairs. I use the expression undue influence, as more comprehensivethan riot, bribery, or intimidation, and including other forms ofimproper influence, such as that of capital over labor. The questionshould be put in a general form to be correctly answered, becausethere is nothing in intimidation by violence which would make it agood cause for exclusion, more than that other kind of intimidation, which is social or financial. If, in ascertaining the state of thevote, it be lawful to inquire whether certain voters were frightenedby a rifle-club to stay away from the polls, or to vote as the clubdictated, it must also be lawful to inquire whether the same number ofvoters were induced to vote or not to vote by fear that theirdiscounts might be lessened at the village bank, or their employmentdiscontinued at the neighboring factory. I state the proposition, therefore, as one covering all kinds of undue influence. I refrain, however, from going into the question whether this influence was orwas not exerted, for I am inquiring into the law as applicable tocertain alleged facts, leaving the truth of the allegations to bedealt with by others. The sole object of all the machinery of elections, the ballots, theballot-boxes, the canvassers and supervisors of elections, the returnsand the returning boards, is, to ascertain the will of the people. Nobody supposes that that will is ascertained to a certainty. Anapproximation only is possible under our present system. To saynothing of the exclusion of women from an expression of their will, aportion only--though it may be a large portion--of the men expresstheirs. The sick, the infirm, the absent, say nothing. Theregistration is always in excess of the vote, and the number of votersfalls short of the registration. The reason is patent: many voters areabsent at the time of registration, or are otherwise unable orunmindful to register; and when the time of voting arrives many ofthose who are registered are absent or prevented from attendance. Theregistration may generally be had on any one of several days, whilethe voting is to be done on one day. The machinery is imperfect andclumsy at best; but that is not a reason for making it worse, ordepriving ourselves of the advantages which it yields, notwithstandingits imperfections. The nearest approach to absolute justice that wecan now hope to make is to _take the votes_ of all the voters whooffer themselves, and _count the votes that are taken_. Every schemeof counting out legal votes cast, or counting in votes not cast, mustresult in confusion, uncertainty, and fraud. No matter how speciousthe argument may be, it will always mislead, for the reason that itmust in its nature substitute conjecture for fact. The vote must, ofcourse, be legal, it must be intelligible; but such a vote whenoffered must be taken, and when taken counted. The throwing out of all the votes of certain districts is but anothermode of accomplishing the same result as would be effected by therejection and addition of votes in the cases supposed: for, if therebe 10, 000 voters in the district, and 5, 000 only vote, it can make nodifference whether the 5, 000 be rejected, or be allowed to remain andthe same number be added to the other side. If the Legislature of a State were to resolve beforehand that no votesshould be taken in certain counties or parishes, should we not saythat the vote of the remaining counties or parishes would not expressthe vote of the State? If, in a particular parish, with twentypolling-precincts, ten of the precincts are so disturbed by violencethat no votes can be taken, and in the other ten there is no violence, should the votes of the latter be taken as the net result, or shouldno result be declared because half of the voters are prevented fromvoting? The practice of a State must be consistent with itself. Whenthe votes of three-fourths of a State are proffered as the vote of theState, the votes of three-fourths of a parish must be received as thevote of the parish. If there was not a "fair and free election" inone-fourth of the parishes, there was not a "fair and free election"in the State; and the just result should be, that, instead ofrejecting the votes of those parishes because a portion of the voterswere intimidated, the votes of the _State_ should be rejectedaltogether. But why, let me ask, should lawful votes in any case be rejected, because other lawful votes might have been given? If they, whose voteswere cast, had prevented other votes from being also cast, that mightbe a reason for punishing the former. But if the former wereblameless, where is the justice of punishing them for the faults ofothers? Suppose a parish with 10, 000 persons entitled to vote, anddivided into ten precincts. Ordinarily only 8, 000 will register and6, 000 vote; the vote of the 6, 000 being assumed to be an expression ofthe will of the 10, 000. At a particular election 3, 000 persons vote infive of the precincts. In the other five only 1, 000 vote, there beingdisturbances on or before the day of election. It is alleged that thelast 1, 000 votes should not be counted. Why not? Because, say theobjectors, 2, 000 persons did not vote, and it is to be presumed, first, that they were kept from the polls by fear, and, next, that ifthey had voted at all, they would have outvoted the 1, 000. Are notthese the merest assumptions? You cannot get the truth without knowingthe motives which kept voters away, and how they would have voted ifthey had come. You cannot know either with certainty, withoutexamining all the voters. And the theory which would lead you to callthem for examination should also lead you to call all who in othercases have not voted, to ask why they kept away, and how they wouldhave voted if they had been present. The argument which justifies theexclusion in case of intimidation would include all cases of absenceand of inquiry into what would have been the result if there had beenno absence. Intimidation is one kind of undue influence; expectationof benefit is another; fear of social ostracism is another: will yougo into them? There seems no middle course between excluding allinquiry into the causes of absence and the probable votes of theabsent, and allowing it in every instance where persons entitled tovote have not voted. To my thinking, a certificate given after theelimination of votes, in the manner indicated, certifying that theelectors have been chosen by the people of the State, is a palpablefalsehood. _It should have certified that they had been chosen by thepeople of so many parishes or counties, out of the whole number. _ It is impossible, without deranging our system of election, either toreject votes actually cast, out of consideration for the motives withwhich they were cast, or to add to them the supposed votes which mighthave been cast. The ballot itself is a standing protest againstinquiry into motives. It enjoins and protects the secret of the hand;much more should it enjoin and protect the secret of the heart. And asfor adding votes, on the supposition that they might or would havebeen cast but for untoward circumstances, no plausible reason can begiven for it which would not apply to any case of disappointment inthe fullness of the vote. A rainy day of election costs one of theparties thousands of ballots. If it happen to rain on that day, whynot order a new election in better weather; or, to save thatformality, make an estimate of the number who would have attendedunder a cloudless sky, and add their ballots to one side or the other?The rejection of the votes of a parish can be justified, ifjustifiable at all, only on the ground that the votes cast do not givethe voice of the parish, either because they did not express the realwishes of the voters, or because they would have been overborne byother votes if they could have been cast. Does not the foregoing reasoning lead to this conclusion, that whetherthe charges of intimidation in certain counties or parishes of a Statebe founded in fact or in error, they do not warrant the rejection ofthe votes actually cast in those counties or parishes; and, furthermore, that they who insist upon such rejection must accept, asa logical conclusion, the rejection, for a like reason, of the votesof the whole State? I submit that such are the inevitable conclusions. It is insisted, however, that this is an inquiry which cannot be goneinto in the present state of the canvass. Certificates have been sentto Washington, purporting to give the result of the election. Thequestion will probably arise, at the meeting of the two Houses, inthis manner: Two certificates are required, one signed by theelectors, pursuant to the Constitution, certifying their own votes;and the other signed by or under the direction of the Governor of theState, pursuant to act of Congress, certifying the appointment of theelectors. Both certificates are sent to the President of the Senate, in one envelope. It may indeed happen that two envelopes come from thesame State, each containing two certificates of rival governors, andrival electors. If there is but one envelope, one of the certificateswhich should be there may be omitted, or may be imperfect. In allthese cases, it is manifestly incumbent upon the two Houses to receiveor reject, in the exercise of their judgment. But if one envelopeonly is presented, containing the two certificates, both in due form, and objection is nevertheless made that the certificate of theappointment of electors is false, can the objection be entertained?There are those who affirm that it cannot. They reason in this wise:The States are to appoint the electors, and may therefore certify suchas they please. But is not that a _non sequitur_? The States mayappoint whom they please, in such manner as their Legislatures havedirected, but an appointment and a certificate are different things. The latter is, at the very best, only evidence of the former. The factto be determined is the appointment; the certificate is produced asevidence; it may be controvertible or incontrovertible, as the law mayhave provided, but there is nothing in the nature of a certificatewhich forbids inquiry into its verity; it is not a revelation fromabove; it is a paper made by men, fallible always, and sometimesdishonest as well as fallible; and, if honest, often deceived. It ismade generally in secret and _ex parte_, without hearing both sides, without oral testimony, without cross-examination. Of such evidence itmay be safely affirmed, that it is never made final and conclusivewithout positive law to that express effect. Now, it may be competent for the Legislature of a State, under its ownconstitution, to determine how far one of its own records shall beconclusive between its own citizens. It may enact, that thecertificate of a judge of a court of record, of a sheriff, a countycommissioner, a board of tax assessors, or aboard of State canvassers, shall or shall not be open to investigation. There is, however, no actof Congress on the subject of the present inquiry, and we are left tothe Constitution itself, with such guides to its true interpretationas are furnished by just analogy and by history. If it can be shownthat the certificate was corruptly made, by the perpetration of grossfrauds in tampering with the returns, must it nevertheless flaunt itsfalsehood in the faces of us all, without the possibility ofcontradiction? A President is to be declared elected for thirty-eightStates and forty-two millions of people; the declaration depends uponthe voice, we will suppose, of a single State; that voice is utteredby her votes; to learn what those votes are, we are referred to acertificate, and told that we cannot go behind it. In such case, toassert that the remaining thirty-seven States are powerless to inquireinto the getting up of this certificate, on the demand of those whooffer to prove the fraud of the whole process, is to assert that weare the slaves of fraud, and cannot take our necks from the yoke. I donot believe that such is the law of this land, and I give thesereasons for my belief. In the absence of express enactments to the contrary, any judge mayinquire into any fact necessary to his judgment. The point to beadjudged and declared in the present case is, who has received amajority of the electoral votes, that is, of valid electoral votes, not who has received a majority of certificates. A President is to beelected, not by a preponderance of certification, but by apreponderance of voting. The certificate is not the fact to be proved, but evidence of the fact, and one kind of evidence may be overcome byother and stronger evidence, unless some positive law declares thatthe weaker shall prevail over the stronger, the false over the true. There may, as I have said, be cases where, for the quieting of titles, or the ending of controversies, a record or a certificate is madeunanswerable; that is, though it might be truthfully answered, the lawwill not allow it to be answered. Such cases are exceptional, and theburden of establishing them rests upon him who propounds them. Lethim, therefore, who asserts that the certificate of a returning boardcannot be answered by any number of living witnesses to the contrary, show that positive law which makes it thus unanswerable. There iscertainly nothing in the Constitution of the United States which makesit so, as there is no act of Congress to that effect. A certificate of a board of returning officers has nothing to liken itto a judicial record of contentions between parties. The proceeding is_ex parte_; or, if there be parties, the other States of the Union arenot represented, however much their rights may be affected; theevidence is in part at least by one-sided affidavits; the judges maybe interested and partial. What such a board has about it to inspireconfidence or command respect, it is hard to perceive. If there be anypresumption in its favor, or in favor of the justice of itsjudgments, the presumption is as far from indisputable as a disputablepresumption can ever be. To recapitulate, we may formulate the question in this manner: _Whomhas the State appointed to vote in its behalf for President?_ Themanner of appointment is the vote of the people, for the Legislaturehas so directed. Who, then, are appointed by the people? To state thequestion is nearly equivalent to stating what evidence is admissible;for the question is not, who received the certificate, but whoreceived the votes; and any evidence showing what votes were cast andfor whom is pertinent and must therefore be admissible, unlessexcluded by positive law. The law by which this question is to bedecided is not State, but Federal. If it were otherwise, the Stateofficers might evade the Constitution altogether, for this ordainsthat the appointment shall be by the State, and in such manner as itsLegislature directs; but if the State certificate is conclusive of thefact, the State authorities may altogether refuse obedience to theconstitution and laws, and save themselves from the consequences bycertifying that they have obeyed them. And they may in like mannerdefraud us of our rights, making resistance impossible, by certifyingthat they have not defrauded. Indeed, they might make shorter work ofit, and _omit the election altogether, writing the certificate in itsstead_. If the Governor of Massachusetts were to certify the election of theTilden electors, and their votes were to be sent to Washington, instead of those which the Hayes electors have just given in the faceof the world, must the Tilden votes be counted? Must this nation bowdown before a falsehood? To ask the question is to answer it. There isno law to require it; there can be none until American citizens becomeslaves. The nature of the question to be determined, the absence ofany positive law to shut out pertinent evidence, the impolicy of suchan exclusion, its injustice, and the impossibility of maintaining it, if by any fatality it were for a time established--all theseconsiderations go to make and fortify the position, that whatever bodyhas authority to decide how a State has voted, has authority to drawinformation from all the sources of knowledge. The superstitiousveneration of a certificate, which would implicitly believe it, andshut the eye to other evidence, is as revolting as that of the poornegro in the swamps of Congo, who bows down before his fetich. Theidolaters, mentioned in Scripture, who took a tree out of the wood, burned one part of it, hewed the other, and then worshiped it, wereonly prototypes of the men of our day, who bow down before a piece ofpaper, signed in secret fourteen hundred miles away, asserting as truewhat they know or believe to be false. It were useless, therefore, to inquire how far the laws of a Statemake the certificate of a board of canvassers or of returns conclusiveevidence of the result of an election held in the State. It maybeadmitted that the Supreme Court of Louisiana, for example, has deniedits own competency to go behind the certificate of the board; but eventhat decision is entitled to no respect, being made in contraventionof an express provision of the State statute, as the dissentingopinion of one of the judges clearly shows. Every other State of theUnion, save perhaps one, has decided that the certificate isimpeachable, even in a case where the statute declares that thecanvassers shall "determine what persons have been elected. " Theopinion of the Supreme Court of Wisconsin, an extract from which isgiven in the Appendix, states and decides the point with clearness andunanswerable force. If what has been said be founded in sound reason, the two Houses ofCongress, when inquiring what votes are to be counted, have the rightto go behind the certificate of any officers of a State, to ascertainwho have and who have not been appointed electors. The evidence whichthese Houses will receive upon such inquiry it is for them and themonly to prescribe, in the performance of their highest functions andthe exercise of their sincerest judgment. THE REMEDY FOR A WRONG COUNT is the remaining question. Hitherto, I have endeavored to state in apopular manner the existing law, as I understand it. I will now ask aconsideration of the needs of future legislation. If there be anythingobscure in the present law, Congress has the power to make it clear;if there be danger in our present condition, Congress can remove thedanger. There are various ways of doing it. One is to provide for a judicial committee of the two Houses, to sitin judgment, as if they were judges, and pronounce upon the result ofthe evidence. The English House of Commons used to reject or admitmembers, from considerations of party. Englishmen have thought thatthey had at last succeeded in establishing a tribunal which woulddecide with impartiality and justice. We should be able to devisemeans equally sure of arriving at a result just in itself, andsatisfactory to all. The considerations in favor of a judicialcommittee of the two Houses are cogent, though they may not beconclusive. They are, the necessity of a speedy decision, and thedesirableness of keeping, if possible, the ordinary courts out ofcontact with questions of the greatest political significance. But if it be found impossible to agree upon the formation of such acommittee, then a resort to the courts should certainly be had. Thepublic conscience must be satisfied that the person sitting in ourhighest seat of magistracy is there by a just title; and it can besatisfied of that, in doubtful cases, only by a judicial inquiry. An act of Congress might provide either for the case of a doubledeclaration of the votes, one by each House of Congress, or of asingle declaration by the two Houses acting in concert. In either casethe Supreme Court could be reached only by appeal, and the court offirst instance might be either the Supreme Court of the District ofColumbia or any of the Circuit Courts. The Court of the Districtshould seem to be the most convenient, the most speedy, and the mostappropriate, as being at the seat of Government. For the case of a double declaration it might be provided, that if, upon the counting of the votes the Senate should find one personelected and the House another, an information should be immediatelyfiled in the Supreme Court of the District, in the name of UnitedStates, against both the persons thus designated, alleging the fact, and calling upon each to sustain his title. The difficulty of thisprocess would be how to expedite the proceedings so that a decisionshould be had before the 4th of March, in order to avoid aninterregnum. But I think this difficulty could be overcome. To thisend, the time of the courts engaged in the case should be set apartfor it. The rival claimants would naturally be in Washington, preparedfor the investigation. The evidence previously taken by the twoHouses--for they would assuredly have taken it--could be used, withthe proper guards against hearsay testimony, and any additionalevidence necessary would probably be ready, if the claimants or theirfriends knew beforehand that a trial was likely to be had. It mightindeed happen that the questions to be decided would involve littledispute about facts; as, for example, the present Oregon case. Itshould be provided that the trial must be concluded and judgmentpronounced within a certain number of days, either party being atliberty to appeal, within twenty-four hours after the judgment, to theSupreme Court of the United States, by which the appeal should beheard and decided before the 4th day of March. In case of a single declaration, and consequent induction into office, an information might be filed in the Supreme Court of the District inthe names of the United States and the claimant, against theincumbent, and proceedings carried on in the ordinary manner ofproceedings in the nature of _quo warranto_. Any lawyer could readily frame a bill to embrace these severalprovisions. An amendment of the Constitution would not be necessary. The provisions would operate as a check upon fraud. They would furnisha more certain means of establishing the right. The objection that thecourts would thus be brought into connection with politics is the onlyobjection. But the questions which they would be called upon todecide, would be questions of law and fact, judicial in theircharacter, and kindred to those which the courts are every day calledupon to adjudge. The greatness of the station is only a greater reasonfor judicial investigation. The dignity of the presidential office isnot accepted as a reason why the incumbent should not be impeached andtried. It can be no more a reason why a usurper should not be oustedand a rightful claimant admitted. The President is undoubtedly higherin dignity and greater in power than the Governor of a State, but thereasons why the title of a Governor should be subjected to judicialscrutiny are of the same kind as those which go to show that the titleof a President of the United States should be subjected, uponoccasion, to a like scrutiny. The process was tried and found usefulin the Capitol of Wisconsin, and, for similar reasons, it may be triedand found useful in the Capitol of the Union. So far from degradingthe office, or offending the people to whom the office belongs, it canbut help to make fraud less defiant and right more safe, and add a newcrown to the majesty of law. That triumph of peace and justice inWisconsin has, to the eye of reason, given an added glory to herprairies and hills, and a brighter light to the waters of her shininglakes. APPENDIX. _Observations of the Chief Justice Whiton, of Wisconsin, respectingthe force of a certificate of canvassers:_ "Before proceeding to state our views in regard to the law regulating the canvass of votes by the State canvassers, we propose to consider how far the right of a person to an office is affected by the determination of the canvassers of the votes cast at the election held to choose the officer. Under our constitution, almost all our officers are elected by the people. Thus the Governor is chosen, the constitution providing that the person having the highest number of votes for that office shall be elected. But the constitution is silent as to the mode in which the election shall be conducted, and the votes cast for Governor shall be canvassed and the result of the election ascertained. The duty of prescribing the mode of conducting the election, and of canvassing the votes was, therefore, devolved upon the Legislature. They have accordingly made provision for both, and the question is, whether the canvass, or the election, establishes the right of a person to an office. It seems clear that it cannot be the former, because by our constitution and laws it is expressly provided that the election by the qualified voters shall determine the question. To hold that the canvass shall control, would subvert the foundations upon which our government rests. But it has been repeatedly contended in the course of this proceeding that, although the election by the electors determines the right to the office, yet the decision of the persons appointed to canvass the votes cast at the election, settles finally and completely the question as to the persons elected, and that, therefore, no court can have jurisdiction to inquire into the matter. It will be seen that this view of the question, while it recognizes the principle that the election is the foundation of the right to the office, assumes that the canvassers have authority to decide the matter finally and conclusively. We do not deem it necessary to say anything on the present occasion upon the subject of the jurisdiction of this court, as that question has already been decided, and the reasons for the decision given. Bearing it in mind, then, that under our constitution and laws, it is the election to an office, and not the canvass of the votes, which determines the right to the office, we will proceed to inquire into the proceedings of the State canvassers, by which they determined that the respondent was duly elected. "--(4 _Wis. _, 792. ) APPLETONS' PERIODICALS. APPLETONS' JOURNAL: A MONTHLY MISCELLANY OF POPULAR LITERATURE. NEW SERIES. _TWENTY-FIVE CENTS PER NUMBER. 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