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 presentmonth (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 andVice-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 deliveredby the tellers, and as determined under the act of Congress, approvedJanuary 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: "WhereforeI do declare, that Rutherford B. Hayes, of Ohio, having received amajority of the whole number of electoral votes, is duly electedPresident of the United States for four years, commencing on the fourthday of March, 1877. "

Mr. Hayes was thus declared elected by a majority of one. If any votecounted for him had been counted on the other side, Mr. Tilden, insteadof Mr. Hayes, would have had the 185 votes; if it had been rejectedaltogether, each would have had 184 votes, and the House ofRepresentatives 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 4from Florida. Whether they should have been thus counted is a questionthat affects the honor, the conscience, and the interests of theAmerican people. There is not a person living in this country who hasnot a direct concern in a just answer. Not one will ever live in itwhose respect for this generation will not depend in some degree uponthat answer. 

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

Brewster was not appointed an elector, inasmuch as he did not receive amajority of the votes cast by the people of Louisiana, and inasmuch alsoas 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 testimonytaken by the two Houses of Congress for their own information, beforethey consented to call in the advice of the Electoral Commission. Theevidence of wrongs on both sides, and the irreconcilable contradictionsof witnesses, made President Seelye and Mr. Pierce, of Massachusetts, declare it to be impossible for them to reach a satisfactory conclusionupon the facts, and compelled them to break away from their party, andrefuse to abide by the advice of the Commission. There are certainthings, however, which we know beyond dispute, or about which there isand can be no controversy, and these only will I mention. We know thatthe number of votes cast in Louisiana for the Tilden electors, takingthe first name on the list as representing all, was 83, 723, but that thecertificate 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; andwe know that the reduction was made by throwing out more than 13, 000votes of legal voters voting legally for Mr. Tilden, and that more than10, 000 of these were thrown out upon the assumed authority of a statuteof Louisiana, which in terms gave the board power to throw out votes, upon examination and deliberation, "whenever, from any poll orvoting-place, there shall be received the _statement of any supervisor_of registration _or commissioner_ of election, in form as required bysection 26 of this act, _on affidavit of three or more citizens_, of anyriot, tumult, acts of violence, intimidation, armed disturbance, bribery, or corrupt influences, which prevented, or tended to prevent, afair, free, and peaceable vote of all qualified electors entitled tovote at such poll or voting-place. "

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

Without going into that question, however, and assuming for the sake ofthe argument that the statute had all the authority of the most clearlyvalid statute that was ever passed, it is certain that the only groundupon which a vote could have been thrown out, for intimidation or othercorrupt influence, was the statement of a supervisor of registration orcommissioner of election, founded upon the affidavits of three citizens. When, however, the vote of Louisiana was before the ElectoralCommission, 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 Commissionused 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 givenfor them be sound or unsound, it may be assumed, that _Brewster did notreceive a majority of the votes cast by the people of Louisiana, andthat the action of the Returning Board_ in cutting down the majority ofhis competitor, so as to reduce it below his, _was taken withoutjurisdiction, and upon the pretense of statements and affidavits whichthey themselves had caused to be forged_. 

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

He had been made Surveyor-General of the United States, for the Districtof Louisiana, on the 2d of February, 1874; was recommissioned byPresident Grant on the 11th of February, 1875, and is at presentexercising the office. Whether he has ever been out of the officedepends upon the facts now to be mentioned. Eight or nine days after theelection of November 7, 1876, at which he was a candidate on theRepublican electoral ticket, there was received at the Department of theInterior, 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 Brewsterwas acting as Surveyor-General on the 10th of November. 

On the 16th of November a letter was addressed to the Commissioner ofthe 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 theacceptance of his resignation we do not know, but it could not have beenearlier than the 20th of November. 

On the morning of the 6th of December, the four men who assumed to actas the Returning Board of Louisiana filed in the office of theSecretary of that State a certificate that Brewster, with seven otherpersons, had been appointed presidential electors. There was then on thestatute-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, onhis 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 theywere chosen to fill their own vacancies; and three days afterwardBrewster 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 theAppointment Division in the Interior Department was asked and testifiedabout 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 tohave divested himself of his Federal office that he might vote; only tobe reinvested as soon as he had voted?

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

Let us now place side by side the commandment of the Constitution andthe 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 ofall the wrong that has been practised in this presidential count. TheCommission was but a council of advice, which Congress might have takenor not, as it pleased, the only condition being that, in order to rejectit, both Houses must have agreed. The responsibility of the finaldecision 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 goodrepute and our self-respect. 

THE MORAL QUESTION. 

Whatever differences of opinion there may be about the political andlegal questions involved, there can be none about the moral. Thepresidential office is the gift of the people of the several States, oftheir own free-will, expressed according to the laws. A falsification ofthat will is an offense against the State where it is committed, andagainst all the States. If the falsification is beyond the reach of thelaw, it is not beyond the reach of the conscience. A robbery is none theless a robbery because it is beyond the range of vision or the arm ofjustice. If the possessor of an estate has entered through the forgeryof a record or the spoliation of a will, which although believed byevery neighbor is beyond judicial proof, all the world pronounces hispossession fraudulent, even though he scatters his wealth in charitiesand gathers many companions around his luxurious table. The example iscorrupting, but it is against the eternal law of justice that the actshould be respected or the actors continue forever to prosper. 

It is no answer to these observations to say that frauds have beenpractised on the other side. Unhappily there is too much reason tobelieve that neither party is free from practices which are at once ascourge and a dishonor. Neither has the disgraceful monopoly of suchpractices, 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 wouldgo on forever in a compound ratio of crime. The first breach of the lawwould furnish excuse for the second, and their progeny would follow insad progression to the end of time. This is not, however, the moralcondition of the world. The _lex talionis_ has been abolished by the lawof civilization and the higher law of the gospel. 

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

On the 10th of November, President Grant telegraphed to the General ofthe Army instructions about troops in Louisiana and Florida, and addedthat "_no man worthy of the office of President should be willing tohold it if counted in or placed there by fraud_. Either party can affordto be disappointed in the result. _The country cannot afford to have theresult tainted by the suspicion of illegal or false returns. _" Andagain: "The presence of citizens from other States, I understand, isrequested in Louisiana, to see that the Board of Canvassers makes _afair count of the vote actually cast_. It is to be hoped thatrepresentative 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 virtuousimpulses of November faded away in February? Was there a change of heartor a change of opportunity? Neither Congress nor the ElectoralCommission could give an _honest_ title, without investigating thehonesty of the transactions on which the title was founded; and yet aPresident has been installed, in the face of rejected offers to provefrauds, the grossest, the most shameless, and the most corrupting, inall 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 toconceal a meditated fraud? On the very first day of the session, December 4th, Mr. Edmunds, in the Senate, moved certain resolutions, ofwhich 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, summoningwitnesses from far and near, committing the recusant to prison, andlooking into State archives; was all this a mock show, a piece ofpantomime, for the amusement of the lookers-on, while conspirators wereplotting how to conceal what they pretended to be wishing to discover?Taken all in all, the sounding profession, the bustling search, and thestudied concealment, make a drama, half comedy and half tragedy, thelike of which this generation has not seen till now, but the like ofwhich it and its successors may see many times, if the audience does nothiss 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 thatknown? Perhaps it could have been taken in an hour. Why was not thequestion asked, how much time the evidence would take, before it wasexcluded? If the certificate was false, and the falsehood wassusceptible of proof, every effort possible should have been made toreceive it, and receive it all. It is not commonly accepted as goodreason for not searching after the truth, that the search may bedifficult. Nor is it an unusual occurrence to require an argument ordecision to be made within a period limited. Ten minutes' speeches inCongress, two hours' argument in the Supreme Court, a jury shut in aroom until they agree upon a verdict, a court required by statute torender its decision by a day fixed, are not so strange as to beremarkable, or found in practice so embarrassing as to cause thepractice to be abandoned. 

Nor is it any answer to say that, if the offer of evidence had beenaccepted, the proof would have fallen short of the offer. That does notlie in the mouth of any one to say, who excluded the evidence, orjustified its exclusion. The characters of the counsel who made theoffer, and of the commissioner who moved its acceptance, are a guaranteenot only of their good faith, but of a reason for their belief. No manhas any right to deny that the proof offered would have been made good, who refused the opportunity. They who closed their ears should indecency keep their mouths shut. But it was not the counsel and thecommissioner alone who believed that the proof offered would be madegood. Every one who witnessed the examinations in Washington, every onewho read the testimony taken by the Congressional Committees inLouisiana, must have been satisfied that the conduct of the ReturningBoard was throughout unlawful, wicked, and shocking, to the last degree. 

The title of the acting President, however valid in law, if valid atall, is tainted with fraud in fact. There was fraud in certifying thatBrewster had received a majority of the votes of Louisiana, and fraud inattempting to evade that part of the Constitution which pronounced hisdisqualification. When the Electoral Commission advised Congress, andCongress accepted, by not rejecting, the advice, that fraud could not beproved, that advice being but the equivalent of saying that fraud was ofno consequence; when it advised that the incompetency of the ReturningBoard, for want of jurisdiction, could not be proved, such proof beingbut the equivalent of proof that the pretended board was not a board atall; when it advised that the forgery, by direction of the board, of thestatements and affidavits on which it pretended to act as true could notbe proved, that proof being but the equivalent of proof that thepretended statements and affidavits were not statements and affidavitsat all; when it advised that the barrier raised by the Constitutionagainst the appointment of a Federal officer to choose a FederalPresident, was not a barrier at all--the moral sense of the wholeAmerican people was shocked. No form of words can cover up thefalsehood; no sophistry can hide it; no lapse of time wash it out. Itwill follow its contrivers wherever they go, confront them whenever theyturn, 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 seekto persuade us into giving you our votes, you that have taught us such acontempt for votes, that one fraudulent certificate is better than tenthousand 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 ofthe 6th of December the Federal general commanding in Louisiana hadsurrounded the State-House with soldiers, and marching in eight of hiscaptains, had compelled the Returning Board to certify theirappointment as electors, and the Governor to add his certificate, Congress and the country would have been obliged to accept the votes ofthese captains as the constitutional and lawful votes of Louisianaelectors. Whoever supposes that the union of these States can endureunder such an interpretation of their fundamental law, must be endowedwith credulity beyond the simplicity of childhood. The doctrine is anopen invitation to transgression and usurpation. The judiciousdisposition of a few troops in the capitals of disputed States, on theday of the electoral vote, will perpetuate an Administration just solong as the audacity of a President, or the cupidity of hisoffice-holders, may find it desirable; unless, indeed, it be found, asis most likely, that the ways of fraud are cheaper, easier, and lesspalpable 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 ofthe Senate, is, that the certificate of the Governor "_on and accordingto the determination and declaration_" of the State canvassers, cannotbe shown to be false, though it may have been obtained by force orfraud. This doctrine admits that the truth of the _Governor's_certificate can be inquired into, else why the qualification that itmust be "_on and according to_" the canvasser's certificate. It is saidto be good only when in such accord; therefore, when not in accord, itis good for nothing. We may, then, dismiss the Governor's certificate asof no account, and to be left therefore out of further discussion. Thesubstance of the doctrine is, that the _certificate of the Statecanvassers_ cannot be contradicted. 

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

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

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

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

 "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 statuteapplied to the canvassers of a presidential election, or whether thewords _prima facie_ really meant _prima facie_, or whether "courts ofjustice, " and "civil officers, " included the Electoral Commission andthe two Houses of Congress, there can be no doubt that "the returns ofthe elections thus made and promulgated" do not include returnscanvassed without jurisdiction, or made under cover of pretendedaffidavits which the returning officers themselves caused to be forged. 

But, passing from this view of the subject, although this is sufficientto dispose of Brewster's pretensions, let us suppose a strongercase--the strongest supposable--that of a State Legislature directingnot only the manner in which electors shall be appointed, but directingalso that the certificate of the State canvassers shall be conclusiveevidence that the State has appointed in the manner directed. 

Because the Constitution provides that electors shall be appointed bythe State, in the manner directed by its Legislature, it is thenceinferred that the State must furnish the evidence of the appointment, and of course that none can be received except that which the State hasfurnished. And this is said to be the true States-rights doctrine. It isa strange sight, that of gentlemen clamoring for State rights who willnot allow the people of Louisiana and South Carolina to take care ofthemselves; who are even now debating at Washington whether they shallnot order new elections in those States, or which of two Stategovernments they shall put up and which put down, and who since the warhave treated the South as if no States were there, parceling it intomilitary districts, and denying recognition until constitutionalamendments were ratified. Their assertion of the conclusiveness of falseand fraudulent canvassers' certificates, on the pretense of upholdingState rights, should seem to be thrown in our faces by way of bravado, unless it be meant, indeed, for burlesque masking hypocrisy. But if thesight were not strange, and those gentlemen had been all along ascareful 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 fencingthem against force or fraud, by leaving them untrammeled in their ownaction, and leaving us untrammeled in finding out what that action hasbeen. No rights are ever lost by letting in the light. 

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

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

The Electoral Commission and the Senate read the Constitution as if thewords 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 themthe words in italics, or their substance; and if it had been proposed toadd them when the Constitution was presented to the people, I do notbelieve that they would have been accepted. 

Had it been suggested to the freemen of Massachusetts or Connecticutthat they should give to the Legislature of another State not only theright of designating how the electors should be chosen, whose voicesmight make a President for them, but also the right to designate apermanent board, with power to say, in the face of the truth, who had orhad not been chosen, the voices of John Hancock and Oliver Ellsworthwould surely have warned the good people of their native Commonwealthsagainst so dangerous a proposition. 

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

The power to give a conclusive certificate of appointment--that is, acertificate that precludes further inquiry--is virtually a power toappoint, since no one is then permitted to go behind the certificate toshow that there was neither valid appointment nor form of appointment. Unless, therefore, the Legislature of Louisiana could, under theConstitution, confer upon the Returning Board power to appointpresidential electors for Louisiana, it could not confer upon it powerto give a conclusive certificate of appointment. The constitution ofthis Returning Board is known to us all. It was a permanent body, holding for an undefined period, or for life, consisting of fourpersons of one party, when there should have been five, of differentparties; and the four had persistently refused for years to select afifth. To pretend that such a body was, or could lawfully be, empoweredto appoint eight electors for the people of Louisiana, to match theeight who were appointed by the people of Maryland, would be simpleeffrontery; and most certainly, as I have said, if they could notappoint, they could not give an incontrovertible certificate ofappointment. The certificate is one thing; the appointment another. TheState 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 personssought to be excluded by these words of the Constitution: "No Senator orRepresentative, or person holding an office of trust or profit under theUnited States, shall be appointed an elector. " He was, nevertheless, appointed, and he voted, and his vote made the President. How was thisbrought about? The Commission answer, "That it is not competent to provethat any of said persons so appointed electors as aforesaid held anoffice of trust or profit under the United States at the time when theywere appointed. " Of course, if it was not competent to prove it, thefact itself must have been of no importance. 

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

It was, indeed, mentioned in the course of the argument, though theCommission 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 bothpresent and absent, the question of eligibility did not arise. Butenough has been said about this resignation sham. If such a trick hadbeen played in respect to a note-of-hand of five dollars, there is not ajustice of the peace who would not have denounced the trick, asconferring no right and affording no protection. 

The people of New York were amused, three or four years ago, with thefeats of a juggler, who dressed one side of him as a man, and the otheras a woman, and who turned about so quickly that he showed himself astwo persons of different sexes in the same instant. Brewster's feat wasnot less remarkable: he was at once absent and present; absent that hemight be appointed, and present that he might vote; went through thewhole performance in less than an hour, absenting himself that he mightbe called in to be present, presenting himself though absent, votingballots and signing certificates, showing himself to be as versatile andas agile as that master of jugglery. 

Upon what theory the Commission held that evidence could not bereceived of Brewster's Federal office at the time of his appointmentdoes not appear. He certainly was in the prohibited category. A marriagebetween persons within prohibited degrees is not good, even ifconsummated. The prohibited union of two offices in the same personshould not be thought a legal union, simply because it is practised. Ithas been said, though the Commission did not say it, that Brewster wasat least elector _de facto_, and his vote was good, whatever may havebeen his title. Then why should we trouble ourselves about the returningofficer's certificate? If, as elector _de facto_, his vote was good, then it was good without the certificate, and all that the Commissionshould have looked into was the _fact of voting_, without troublingthemselves about the certificate of anybody or any other evidence oftitle. But, in truth, the distinctions between officers _de facto_ andofficers _de jure_ have no application to the present case, and for thisreason, among others, that two persons cannot hold the same office _defacto_. It is of the essence of a _de facto_ possession of office thatit should be exclusive. The Chancellor of New York said, in a judicialopinion, more than thirty years ago: "When there is but one office therecannot be an officer _de jure_ and an officer _de facto_ both inpossession of the office at the same time. " This is true even when theoffice is a continuing one. Who, for instance, can say which of therival Governors in Louisiana or South Carolina at this moment is theGovernor _de facto_? In deciding between them, would not all the worldpronounce this the only question, which is Governor _de jure_? Much moreis it true when the office is temporary, existing but for a moment, evenif the doctrine of a _de facto_ officer can be applied to such an officeat all. In the present case, Brewster went into the State-House andvoted for Mr. Hayes; at the same instant his rival went into the sameState-House and voted for Mr. Tilden. It is absurd to pronounceBrewster, under such circumstances, an elector _de facto_, so as to makehis 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 thisdifference in his favor, that he was elected, and was eligible, whileBrewster, the intruder, was not eligible, and was not elected. The onlyreturns which went to the Electoral Commission were the double ones, where rival colleges of electors had acted at the same time in the sameState. 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 theelectoral college, it should not be understood, that the other sevenvotes which were counted from that State, and the four votes countedfrom Florida, were any better than his. The one here considered had itspeculiarities; the others had theirs. All of them were tainted, and thecounting in of the President _de facto_ was twelve times fraudulent. What may be the outcome I do not know. That will depend upon the spiritof this generation and the spirit of those to follow. It is aconsolation to know that the questions will be reviewed by a tribunalhigher than the Electoral Commission, higher even than the two Houses ofCongress-the American people--from whose judgment there is no appeal butto the final judgment of history. 

NEW YORK, _March 28, 1877_. 

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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.