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diff --git a/.gitattributes b/.gitattributes new file mode 100644 index 0000000..6833f05 --- /dev/null +++ b/.gitattributes @@ -0,0 +1,3 @@ +* text=auto +*.txt text +*.md text diff --git a/29460-8.txt b/29460-8.txt new file mode 100644 index 0000000..a19e615 --- /dev/null +++ b/29460-8.txt @@ -0,0 +1,1451 @@ +The Project Gutenberg eBook, The Electoral Votes of 1876, by David Dudley +Field + + +This eBook is for the use of anyone anywhere at no cost and with +almost no restrictions whatsoever. You may copy it, give it away or +re-use it under the terms of the Project Gutenberg License included +with this eBook or online at www.gutenberg.org + + + + + +Title: The Electoral Votes of 1876 + Who Should Count Them, What Should Be Counted, and the Remedy for a Wrong Count + + +Author: David Dudley Field + + + +Release Date: July 19, 2009 [eBook #29460] + +Language: English + +Character set encoding: ISO-8859-1 + + +***START OF THE PROJECT GUTENBERG EBOOK THE ELECTORAL VOTES OF 1876*** + + +E-text prepared by Meredith Bach, Richard J. Shiffer, and the Project +Gutenberg Online Distributed Proofreading Team (http://www.pgdp.net) from +digital material generously made available by Internet Archive/American +Libraries (http://www.archive.org/details/americana) + + + +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 Should +Be Counted, and the Remedy +for 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 now +in Washington, or on their way thither, to be kept by the President of +the Senate until their seals are broken in February. The certificates +and the votes of thirty-four of the States are undisputed. The +remaining four are debatable, and questions respecting them have +arisen, upon the decision of which depends the election of the +incoming President. These questions are: Who are to count the votes; +what votes are to be counted; and what is the remedy for a wrong +count? I hope not to be charged with presumption if, in fulfilling my +duty as a citizen, I do what I can toward the answering of these +questions aright; and, though I happen to contribute nothing toward +satisfactory answers, I shall be excused for making the effort. + +The questions themselves have no relation to the relative merits of +the two candidates. Like other voters, I expressed my own preference +on the morning of the election. That duty is discharged; another duty +supervenes, which is, to take care that my vote is counted and allowed +its due place in the summary of the votes. Otherwise the voting +performance becomes ridiculous, and the voter deserves to be laughed +at for his pains. His duty--to cast his vote according to his +conscience--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, in +adjusting the preponderance of the general choice. Whatever may be the +ultimate result of the count, whether his candidate will have lost or +won, is of no importance compared with the maintenance of justice and +the supremacy of law over the preferences and passions of men. + +It concerns the honor of the nation that fraud shall not prevail or +have a chance of prevailing. If a fraudulent count is possible, it is +of little consequence how my vote or the votes of others be cast; for +the supreme will is not that of the honest voter, but of the dishonest +counter; and, when fraud succeeds, or is commonly thought to have +succeeded, the public conscience, shocked at first, becomes weakened +by acquiescence; and vice, found to be profitable, soon comes to be +triumphant. It is of immeasurable importance, therefore, that we +should not only compose the differences that, unfortunately, have +arisen, but compose them upon a basis right in itself and appearing to +be 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 the +present instance consists of addition and subtraction. In another +sense it involves segregation, separation of the false from the true. +If a hundred coins are thrown upon a banker's counter, and his clerk +is told to count the good ones, he has both to select and to +enumerate. He takes such as he finds sufficient in metal and weight, +and rejects the light and counterfeit. So when the Constitution +ordains that "the votes shall then be counted," it means that the true +ones shall be counted, which involves the separation of the true from +the false, if there be present both false and true. In regard to the +agency by which this double process is to be performed, the words of +the Constitution are few: "The President of the Senate shall, in the +presence of the Senate and House of Representatives, open all the +certificates, and the votes shall then be counted." What would one +take to be the meaning of these words, reading them for the first +time? It is, that somebody besides the President of the Senate is to +count, because, if he was to be the counting officer, the language +would naturally have been that _the President of the Senate shall open +all the certificates and count the votes_. There must have been a +reason for this change of phraseology. It should seem to follow, from +these words alone, that, whoever is to count, it is not the President +of the Senate. It should seem also to follow, that the counting is to +be done, not in the presence of Senators and Representatives as +individuals, but in the presence of the two Houses as organized +bodies. If their attendance as spectators merely was intended, the +expression would naturally have been, in the presence of the Senators +and Representatives or so many of them as may choose to attend. The +presence of the Senate and House means their presence as the two +Houses of Congress, with a quorum of each, in the plenitude of their +power, as the coördinate branches of the legislative department of the +Government. And inasmuch as no authorities are required to be present +other than the President of the Senate and the two Houses, if the +former is not to count the votes, the two Houses must. + +The meaning which is thus supposed to be the natural one has been +sanctioned by the legislative and executive departments of the +Government, and established by a usage, virtually unbroken, from the +foundation of the Government to the present year. + +The exhaustive publication on the Presidential Counts, just made by +the Messrs. Appleton, leaves little to be said on this head. + +The sole exception suggested, in respect to the usage, is the +resolution of 1789, but that is not really an exception. We have not +the text of the resolution. We know, however, that there was nothing +to be done but adding a few figures. There was no dispute about a +single vote, as all the world knew. But taking the resolution to have +been what the references to it in the proceedings of the two Houses +would imply, it meant only that a President should be chosen for that +occasion only. The purpose was not to define the functions of any +officer or body, but to go through the _ceremony_ of announcing what +was already known, and to set the government going. No decisions +between existing parties were to be made; no selection of true votes +from false votes, but only an addition of numbers. Individual members +of Congress have undoubtedly in a few instances expressed different +views, but these members have been few, and they have always been in a +hopeless minority. If any one can read the debates, the bills passed +at different times through one House or the other, the joint +resolutions adopted, and the accounts of the votes from time to time +received or rejected, and doubt that the two Houses of Congress have +asserted and maintained, from 1793 until now, their right to accept or +reject the votes of States, and of individual electors of States, all +that I can say is, that he must have a marvelous capacity of doubting. +He must ignore uniform practice as an exponent of constitutions, and +set up his individual misreading of words, reasonably plain in +themselves, against the opinions of almost all who have gone before +him. + +The joint resolution of 1865 is of itself decisive, if a solemn +determination of the two Houses of Congress, approved by the +President, 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 with +the 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 the +Constitution, there is no ground for maintaining the power of the +President of the Senate to decide the question of receiving or +rejecting votes. For, if he has the power under the Constitution, he +cannot waive it, nor can any action of Congress take it away. The +resolution of 1865 had the sanction of each House, was signed by the +President of the Senate and the Speaker of the House, and was approved +by the President. It should set the question of the power of the two +Houses forever at rest. + +The joint rule, first adopted in 1865, and continued in force for ten +years, asserted the same control. It should not have been adopted if +the pretensions now set up for the President of the Senate were of +force; and he might at any time have disregarded it as worthless. But +he did not disregard it; he did not question it; he obeyed it. + +The action of the present Houses, moreover, is an affirmance of their +right to eliminate the false votes from the true. Else why these +committees of each House, investigating at Washington and in the North +and South? Are all the labor and expense of these examinations +undertaken solely in order that the results may be laid before the +President of the Senate for _his_ supreme judgment in the premises? It +is safe to say that there is not a single member of either House who +would not laugh you in the face for asking seriously the question. + +Assuming, then, that the power to decide what votes shall be counted +belongs to the two Houses, how must they exercise it? Here, again, let +me take the illustration with which I began, of the coins upon a +banker's counter. Let us suppose that, instead of one clerk, two were +told to count them together. When they came to a particular coin upon +which they disagreed, one insisting that it was genuine and the other +that it was counterfeit, what would then happen, if they did their +duty? They would count the rest and lay that aside, reporting the +disagreement to their superior. The two Houses of Congress have, +however, no superior, except the States and the people. To these there +can be no reference on the instant; and the action of the two Houses +must be final for the occasion. + +There can be no decision of the Houses if they disagree, and, as no +other authority can decide, there can be no decision at all. The +counting, including the selection, is an affirmative act; and as two +are to perform it, if performed at all, no count or selection can be +made when the two do not concur. Two judges on the bench cannot render +a judgment when there is a disagreement between them. No more can the +two Houses of Congress. There is here no pretense of alternative +power, playing back and forth between the President of the Senate and +the two Houses. If the former has not power complete and exclusive, he +has none. The result must be that, what the two Houses do not agree to +count, cannot be counted. + + +WHAT VOTES SHOULD BE COUNTED. + +This is the second question. The votes to be counted are the votes of +the electors. But who are the electors? The persons appointed by the +States, in the manner directed by their Legislatures respectively. How +is the fact of appointment to be proved? These are the subordinate +questions, the answers to which go to make up the answer to the main +question. + +What are the means of separating the genuine from the counterfeit? +Where are the tests by which to distinguish the true votes from the +false? + +The words of the Constitution are not many: "Each State shall appoint, +in such manner as the Legislature thereof may direct, a number of +electors," who shall meet and vote, "make distinct lists of all +persons voted for as President" ... "and of the number of votes for +each, which list, they shall sign and certify and transmit sealed to +the seat of the Government of the United States, directed to the +President of the Senate." + +_The State_ must appoint, and the appointment must be made _in such +manner_ as _the Legislature_ thereof may direct. Here are the two +elements of a valid appointment, and they must concur. An appointment +not made by the State, or not made in the manner directed by its +Legislature, is no appointment at all. + +There must be _State_ action in the _manner_ directed. If, for +example, an appointment were made by a State authority, such as the +Governor, without the sanction of the Legislature, it would be void. +If it were made by the people in mass-convention, but not in a manner +directed by the Legislature, it would be void also. And if, on the +other hand, it were made in such manner as the Legislature had +directed, but not made by the State, it would be equally invalid. +Indeed, the Legislature may itself have given a direction in +contravention of the State constitution, and thus the direction prove +a nullity. So, too, the Legislature may have acted in contravention of +the Federal Constitution, and for that reason its direction may have +been void. The appointing power is the State, the manner of its action +is prescribed by the Legislature; the valid authority and the valid +manner of its exercise must concur, to make a valid appointment. + +If, therefore, the persons assuming the office are not appointed _by +the State_, and _in the manner_ directed by the Legislature, they are +not electors; that is to say, they are not electors _de jure_; +electors _de facto_ they can hardly become, since their functions +exist but for a moment, and with one act they perish. What is an +appointment by the State? How can _a State_ appoint? I answer, by the +people, the corporators of the body politic and corporate, or by one +of the departments of its government, as established by its +constitution. The power to appoint cannot be renounced or divested. It +must ever remain in the State, a living power, to be called into +action at each recurring election. It cannot be delegated, except as +the different powers of the State are by its constitution delegated to +its great departments of government. If it were otherwise, it might be +delegated to a foreign prince, and delegated in perpetuity. It is no +answer to say that such a delegation _would_ not be made, the question +is, whether it _could_ be made, without violating the Constitution of +the country? I insist that it could not; and that if the Legislature +of New York were to authorize our friend the Emperor Alexander, or our +excellent neighbor the Governor-General of Canada, to appoint the +thirty-five presidential electors to which New York is entitled in the +sum total of the electoral colleges, and the electors thus appointed +were to receive the certificate of the Governor of New York, and to +meet, vote, and transmit their certificates to Washington, the votes +might be lawfully rejected. Such an occurrence is in the highest +degree improbable; but stranger things than that have happened. The +Empress Catharine intervened in the election of the kings of Poland, +and the interference led to the downfall of the government and the +blotting of the country from the map of Europe. Indeed, I venture to +express my belief, that such an intervention of foreign influence +in our elections would have been hardly more startling to the +imaginations of our fathers than the spectacle which our own eyes have +seen; federal soldiers removing representatives from the Capitol of +one State, and stationed at the doors of another, to inspect the +certificates of members elected to its Legislature. + +Not to go abroad, however, for illustrations, let us suppose that the +General Court convened in the State-House at Boston were to depute the +State of New York or the State of Virginia to appoint electors for the +State of Massachusetts, no man would be wild enough to pronounce such +a deputation valid. It should seem to be certain, for a reason hardly +less satisfactory, that the Legislature of Massachusetts could not +authorize the Mayor of Boston or the town council of Worcester to +appoint her electors; and, if that be so, and the rule is to prevail +that, in law, what cannot be done directly cannot be done indirectly, +it should follow that the State could not delegate to any other agency +the power of appointment. If a body called a returning board be so +constituted as that, in certain contingencies, it may depart from the +inquiry what votes have been cast, and cast the votes itself, or by +_any sort of contrivance_ do the same thing under a different name, or +by a roundabout process, it is, to that extent, an unlawful body under +the Federal Constitution. Assuming, then, that a returning board has +among its functions that of rejecting the votes in particular +districts, for the reason either that they were affected by undue +influence, or that other voters were led by like influence to refrain +from voting, can such a function be valid under the Constitution of +the United States? There is no question were of throwing out +particular votes for vices inherent in themselves, such as that they +were illegible, or were cast by disqualified persons, and the like; +but the question is of rejecting the votes of a certain number--say a +thousand voters--either because they were unduly influenced, or +because another thousand, who might have voted, were, by undue +influences, prevented from voting at all. + +Whatever may be the law of a State in respect to the choice of its own +officers, it seems most reasonable to hold that, under that common +Constitution which governs and provides for all the States alike, when +the only legitimate inquiry is whom has a particular _State_ +appointed, in the manner directed by its Legislature, and the +Legislature has directed the appointment to be made by a general +election, that is, by the votes of all qualified persons, the only +valid office of a returning board must be to ascertain and declare how +the State has actually voted, not how it might or would have voted +under other circumstances, or, in other words, what is the number of +legal votes actually cast; not how many have been unduly influenced, +or how many other votes would have been cast in a different state of +affairs. I use the expression undue influence, as more comprehensive +than riot, bribery, or intimidation, and including other forms of +improper influence, such as that of capital over labor. The question +should be put in a general form to be correctly answered, because +there is nothing in intimidation by violence which would make it a +good cause for exclusion, more than that other kind of intimidation, +which is social or financial. If, in ascertaining the state of the +vote, it be lawful to inquire whether certain voters were frightened +by a rifle-club to stay away from the polls, or to vote as the club +dictated, it must also be lawful to inquire whether the same number of +voters were induced to vote or not to vote by fear that their +discounts might be lessened at the village bank, or their employment +discontinued 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 or +was not exerted, for I am inquiring into the law as applicable to +certain alleged facts, leaving the truth of the allegations to be +dealt with by others. + +The sole object of all the machinery of elections, the ballots, the +ballot-boxes, the canvassers and supervisors of elections, the returns +and the returning boards, is, to ascertain the will of the people. +Nobody supposes that that will is ascertained to a certainty. An +approximation only is possible under our present system. To say +nothing of the exclusion of women from an expression of their will, a +portion only--though it may be a large portion--of the men express +theirs. The sick, the infirm, the absent, say nothing. The +registration is always in excess of the vote, and the number of voters +falls short of the registration. The reason is patent: many voters are +absent at the time of registration, or are otherwise unable or +unmindful to register; and when the time of voting arrives many of +those who are registered are absent or prevented from attendance. The +registration may generally be had on any one of several days, while +the voting is to be done on one day. The machinery is imperfect and +clumsy at best; but that is not a reason for making it worse, or +depriving ourselves of the advantages which it yields, notwithstanding +its imperfections. The nearest approach to absolute justice that we +can now hope to make is to _take the votes_ of all the voters who +offer themselves, and _count the votes that are taken_. Every scheme +of counting out legal votes cast, or counting in votes not cast, must +result in confusion, uncertainty, and fraud. No matter how specious +the argument may be, it will always mislead, for the reason that it +must in its nature substitute conjecture for fact. The vote must, of +course, be legal, it must be intelligible; but such a vote when +offered must be taken, and when taken counted. + +The throwing out of all the votes of certain districts is but another +mode of accomplishing the same result as would be effected by the +rejection and addition of votes in the cases supposed: for, if there +be 10,000 voters in the district, and 5,000 only vote, it can make no +difference whether the 5,000 be rejected, or be allowed to remain and +the same number be added to the other side. + +If the Legislature of a State were to resolve beforehand that no votes +should be taken in certain counties or parishes, should we not say +that the vote of the remaining counties or parishes would not express +the vote of the State? If, in a particular parish, with twenty +polling-precincts, ten of the precincts are so disturbed by violence +that 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 should +no result be declared because half of the voters are prevented from +voting? The practice of a State must be consistent with itself. When +the votes of three-fourths of a State are proffered as the vote of the +State, the votes of three-fourths of a parish must be received as the +vote of the parish. If there was not a "fair and free election" in +one-fourth of the parishes, there was not a "fair and free election" +in the State; and the just result should be, that, instead of +rejecting the votes of those parishes because a portion of the voters +were intimidated, the votes of the _State_ should be rejected +altogether. + +But why, let me ask, should lawful votes in any case be rejected, +because other lawful votes might have been given? If they, whose votes +were cast, had prevented other votes from being also cast, that might +be a reason for punishing the former. But if the former were +blameless, where is the justice of punishing them for the faults of +others? Suppose a parish with 10,000 persons entitled to vote, and +divided into ten precincts. Ordinarily only 8,000 will register and +6,000 vote; the vote of the 6,000 being assumed to be an expression of +the will of the 10,000. At a particular election 3,000 persons vote in +five of the precincts. In the other five only 1,000 vote, there being +disturbances on or before the day of election. It is alleged that the +last 1,000 votes should not be counted. Why not? Because, say the +objectors, 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 if +they had voted at all, they would have outvoted the 1,000. Are not +these the merest assumptions? You cannot get the truth without knowing +the motives which kept voters away, and how they would have voted if +they had come. You cannot know either with certainty, without +examining all the voters. And the theory which would lead you to call +them for examination should also lead you to call all who in other +cases have not voted, to ask why they kept away, and how they would +have voted if they had been present. The argument which justifies the +exclusion in case of intimidation would include all cases of absence +and of inquiry into what would have been the result if there had been +no absence. Intimidation is one kind of undue influence; expectation +of benefit is another; fear of social ostracism is another: will you +go into them? There seems no middle course between excluding all +inquiry into the causes of absence and the probable votes of the +absent, and allowing it in every instance where persons entitled to +vote have not voted. To my thinking, a certificate given after the +elimination of votes, in the manner indicated, certifying that the +electors have been chosen by the people of the State, is a palpable +falsehood. _It should have certified that they had been chosen by the +people of so many parishes or counties, out of the whole number._ + +It is impossible, without deranging our system of election, either to +reject votes actually cast, out of consideration for the motives with +which they were cast, or to add to them the supposed votes which might +have been cast. The ballot itself is a standing protest against +inquiry into motives. It enjoins and protects the secret of the hand; +much more should it enjoin and protect the secret of the heart. And as +for adding votes, on the supposition that they might or would have +been cast but for untoward circumstances, no plausible reason can be +given for it which would not apply to any case of disappointment in +the fullness of the vote. A rainy day of election costs one of the +parties thousands of ballots. If it happen to rain on that day, why +not order a new election in better weather; or, to save that +formality, make an estimate of the number who would have attended +under a cloudless sky, and add their ballots to one side or the other? +The rejection of the votes of a parish can be justified, if +justifiable at all, only on the ground that the votes cast do not give +the voice of the parish, either because they did not express the real +wishes of the voters, or because they would have been overborne by +other votes if they could have been cast. + +Does not the foregoing reasoning lead to this conclusion, that whether +the charges of intimidation in certain counties or parishes of a State +be founded in fact or in error, they do not warrant the rejection of +the votes actually cast in those counties or parishes; and, +furthermore, that they who insist upon such rejection must accept, as +a logical conclusion, the rejection, for a like reason, of the votes +of the whole State? I submit that such are the inevitable conclusions. + +It is insisted, however, that this is an inquiry which cannot be gone +into in the present state of the canvass. Certificates have been sent +to Washington, purporting to give the result of the election. The +question will probably arise, at the meeting of the two Houses, in +this manner: Two certificates are required, one signed by the +electors, pursuant to the Constitution, certifying their own votes; +and the other signed by or under the direction of the Governor of the +State, pursuant to act of Congress, certifying the appointment of the +electors. Both certificates are sent to the President of the Senate, +in one envelope. It may indeed happen that two envelopes come from the +same State, each containing two certificates of rival governors, and +rival electors. If there is but one envelope, one of the certificates +which should be there may be omitted, or may be imperfect. In all +these cases, it is manifestly incumbent upon the two Houses to receive +or reject, in the exercise of their judgment. But if one envelope +only is presented, containing the two certificates, both in due form, +and objection is nevertheless made that the certificate of the +appointment 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 such +as they please. But is not that a _non sequitur_? The States may +appoint whom they please, in such manner as their Legislatures have +directed, but an appointment and a certificate are different things. +The latter is, at the very best, only evidence of the former. The fact +to be determined is the appointment; the certificate is produced as +evidence; it may be controvertible or incontrovertible, as the law may +have provided, but there is nothing in the nature of a certificate +which forbids inquiry into its verity; it is not a revelation from +above; it is a paper made by men, fallible always, and sometimes +dishonest as well as fallible; and, if honest, often deceived. It is +made generally in secret and _ex parte_, without hearing both sides, +without oral testimony, without cross-examination. Of such evidence it +may be safely affirmed, that it is never made final and conclusive +without positive law to that express effect. + +Now, it may be competent for the Legislature of a State, under its own +constitution, to determine how far one of its own records shall be +conclusive between its own citizens. It may enact, that the +certificate of a judge of a court of record, of a sheriff, a county +commissioner, a board of tax assessors, or aboard of State canvassers, +shall or shall not be open to investigation. There is, however, no act +of Congress on the subject of the present inquiry, and we are left to +the Constitution itself, with such guides to its true interpretation +as are furnished by just analogy and by history. If it can be shown +that the certificate was corruptly made, by the perpetration of gross +frauds in tampering with the returns, must it nevertheless flaunt its +falsehood in the faces of us all, without the possibility of +contradiction? A President is to be declared elected for thirty-eight +States and forty-two millions of people; the declaration depends upon +the voice, we will suppose, of a single State; that voice is uttered +by her votes; to learn what those votes are, we are referred to a +certificate, and told that we cannot go behind it. In such case, to +assert that the remaining thirty-seven States are powerless to inquire +into the getting up of this certificate, on the demand of those who +offer to prove the fraud of the whole process, is to assert that we +are the slaves of fraud, and cannot take our necks from the yoke. I do +not believe that such is the law of this land, and I give these +reasons for my belief. + +In the absence of express enactments to the contrary, any judge may +inquire into any fact necessary to his judgment. The point to be +adjudged and declared in the present case is, who has received a +majority of the electoral votes, that is, of valid electoral votes, +not who has received a majority of certificates. A President is to be +elected, not by a preponderance of certification, but by a +preponderance of voting. The certificate is not the fact to be proved, +but evidence of the fact, and one kind of evidence may be overcome by +other and stronger evidence, unless some positive law declares that +the 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 made +unanswerable; that is, though it might be truthfully answered, the law +will not allow it to be answered. Such cases are exceptional, and the +burden of establishing them rests upon him who propounds them. Let +him, therefore, who asserts that the certificate of a returning board +cannot be answered by any number of living witnesses to the contrary, +show that positive law which makes it thus unanswerable. There is +certainly nothing in the Constitution of the United States which makes +it so, as there is no act of Congress to that effect. + +A certificate of a board of returning officers has nothing to liken it +to a judicial record of contentions between parties. The proceeding is +_ex parte_; or, if there be parties, the other States of the Union are +not represented, however much their rights may be affected; the +evidence is in part at least by one-sided affidavits; the judges may +be interested and partial. What such a board has about it to inspire +confidence or command respect, it is hard to perceive. If there be any +presumption in its favor, or in favor of the justice of its +judgments, the presumption is as far from indisputable as a disputable +presumption can ever be. + +To recapitulate, we may formulate the question in this manner: _Whom +has the State appointed to vote in its behalf for President?_ The +manner of appointment is the vote of the people, for the Legislature +has so directed. Who, then, are appointed by the people? To state the +question is nearly equivalent to stating what evidence is admissible; +for the question is not, who received the certificate, but who +received the votes; and any evidence showing what votes were cast and +for whom is pertinent and must therefore be admissible, unless +excluded by positive law. The law by which this question is to be +decided is not State, but Federal. If it were otherwise, the State +officers might evade the Constitution altogether, for this ordains +that the appointment shall be by the State, and in such manner as its +Legislature directs; but if the State certificate is conclusive of the +fact, the State authorities may altogether refuse obedience to the +constitution and laws, and save themselves from the consequences by +certifying that they have obeyed them. And they may in like manner +defraud us of our rights, making resistance impossible, by certifying +that they have not defrauded. Indeed, they might make shorter work of +it, and _omit the election altogether, writing the certificate in its +stead_. + +If the Governor of Massachusetts were to certify the election of the +Tilden electors, and their votes were to be sent to Washington, +instead of those which the Hayes electors have just given in the face +of the world, must the Tilden votes be counted? Must this nation bow +down before a falsehood? To ask the question is to answer it. There is +no law to require it; there can be none until American citizens become +slaves. The nature of the question to be determined, the absence of +any positive law to shut out pertinent evidence, the impolicy of such +an exclusion, its injustice, and the impossibility of maintaining it, +if by any fatality it were for a time established--all these +considerations go to make and fortify the position, that whatever body +has authority to decide how a State has voted, has authority to draw +information from all the sources of knowledge. The superstitious +veneration of a certificate, which would implicitly believe it, and +shut the eye to other evidence, is as revolting as that of the poor +negro in the swamps of Congo, who bows down before his fetich. The +idolaters, mentioned in Scripture, who took a tree out of the wood, +burned one part of it, hewed the other, and then worshiped it, were +only prototypes of the men of our day, who bow down before a piece of +paper, signed in secret fourteen hundred miles away, asserting as true +what they know or believe to be false. + +It were useless, therefore, to inquire how far the laws of a State +make the certificate of a board of canvassers or of returns conclusive +evidence of the result of an election held in the State. It maybe +admitted that the Supreme Court of Louisiana, for example, has denied +its own competency to go behind the certificate of the board; but even +that decision is entitled to no respect, being made in contravention +of an express provision of the State statute, as the dissenting +opinion of one of the judges clearly shows. Every other State of the +Union, save perhaps one, has decided that the certificate is +impeachable, even in a case where the statute declares that the +canvassers shall "determine what persons have been elected." The +opinion of the Supreme Court of Wisconsin, an extract from which is +given in the Appendix, states and decides the point with clearness and +unanswerable force. + +If what has been said be founded in sound reason, the two Houses of +Congress, when inquiring what votes are to be counted, have the right +to go behind the certificate of any officers of a State, to ascertain +who have and who have not been appointed electors. The evidence which +these Houses will receive upon such inquiry it is for them and them +only to prescribe, in the performance of their highest functions and +the exercise of their sincerest judgment. + + +THE REMEDY FOR A WRONG COUNT + +is the remaining question. Hitherto, I have endeavored to state in a +popular manner the existing law, as I understand it. I will now ask a +consideration of the needs of future legislation. If there be anything +obscure in the present law, Congress has the power to make it clear; +if there be danger in our present condition, Congress can remove the +danger. There are various ways of doing it. + +One is to provide for a judicial committee of the two Houses, to sit +in judgment, as if they were judges, and pronounce upon the result of +the evidence. The English House of Commons used to reject or admit +members, from considerations of party. Englishmen have thought that +they had at last succeeded in establishing a tribunal which would +decide with impartiality and justice. We should be able to devise +means equally sure of arriving at a result just in itself, and +satisfactory to all. The considerations in favor of a judicial +committee of the two Houses are cogent, though they may not be +conclusive. They are, the necessity of a speedy decision, and the +desirableness of keeping, if possible, the ordinary courts out of +contact with questions of the greatest political significance. + +But if it be found impossible to agree upon the formation of such a +committee, then a resort to the courts should certainly be had. The +public conscience must be satisfied that the person sitting in our +highest seat of magistracy is there by a just title; and it can be +satisfied of that, in doubtful cases, only by a judicial inquiry. + +An act of Congress might provide either for the case of a double +declaration of the votes, one by each House of Congress, or of a +single declaration by the two Houses acting in concert. In either case +the Supreme Court could be reached only by appeal, and the court of +first instance might be either the Supreme Court of the District of +Columbia or any of the Circuit Courts. The Court of the District +should seem to be the most convenient, the most speedy, and the most +appropriate, 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 person +elected and the House another, an information should be immediately +filed in the Supreme Court of the District, in the name of United +States, against both the persons thus designated, alleging the fact, +and calling upon each to sustain his title. The difficulty of this +process would be how to expedite the proceedings so that a decision +should be had before the 4th of March, in order to avoid an +interregnum. But I think this difficulty could be overcome. To this +end, the time of the courts engaged in the case should be set apart +for it. The rival claimants would naturally be in Washington, prepared +for the investigation. The evidence previously taken by the two +Houses--for they would assuredly have taken it--could be used, with +the proper guards against hearsay testimony, and any additional +evidence necessary would probably be ready, if the claimants or their +friends knew beforehand that a trial was likely to be had. It might +indeed happen that the questions to be decided would involve little +dispute about facts; as, for example, the present Oregon case. It +should be provided that the trial must be concluded and judgment +pronounced within a certain number of days, either party being at +liberty to appeal, within twenty-four hours after the judgment, to the +Supreme Court of the United States, by which the appeal should be +heard 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 in +the names of the United States and the claimant, against the +incumbent, and proceedings carried on in the ordinary manner of +proceedings in the nature of _quo warranto_. + +Any lawyer could readily frame a bill to embrace these several +provisions. An amendment of the Constitution would not be necessary. +The provisions would operate as a check upon fraud. They would furnish +a more certain means of establishing the right. The objection that the +courts would thus be brought into connection with politics is the only +objection. But the questions which they would be called upon to +decide, would be questions of law and fact, judicial in their +character, and kindred to those which the courts are every day called +upon to adjudge. The greatness of the station is only a greater reason +for judicial investigation. The dignity of the presidential office is +not accepted as a reason why the incumbent should not be impeached and +tried. It can be no more a reason why a usurper should not be ousted +and a rightful claimant admitted. The President is undoubtedly higher +in dignity and greater in power than the Governor of a State, but the +reasons why the title of a Governor should be subjected to judicial +scrutiny are of the same kind as those which go to show that the title +of a President of the United States should be subjected, upon +occasion, to a like scrutiny. The process was tried and found useful +in the Capitol of Wisconsin, and, for similar reasons, it may be tried +and found useful in the Capitol of the Union. So far from degrading +the office, or offending the people to whom the office belongs, it can +but help to make fraud less defiant and right more safe, and add a new +crown to the majesty of law. That triumph of peace and justice in +Wisconsin has, to the eye of reason, given an added glory to her +prairies and hills, and a brighter light to the waters of her shining +lakes. + + + + +APPENDIX. + +_Observations of the Chief Justice Whiton, of Wisconsin, respecting +the 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. THREE DOLLARS PER ANNUM._ + +APPLETONS' JOURNAL is now published monthly; it is devoted to popular +literature and all matters of taste and general culture--published at +a price to bring it within the reach of all classes. 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APPLETON & CO., PUBLISHERS, + 549 & 551 Broadway, New York. + + + + +THE PRESIDENTIAL COUNTS: + + A COMPLETE OFFICIAL RECORD + + _OF THE PROCEEDINGS OF CONGRESS AT THE COUNTING + OF THE ELECTORAL VOTES IN ALL THE ELECTIONS + OF PRESIDENT AND VICE-PRESIDENT OF THE + UNITED STATES; TOGETHER WITH ALL + CONGRESSIONAL LEGISLATION + INCIDENT THERETO, OR TO + PROPOSED LEGISLATION + UPON THAT SUBJECT._ + +WITH AN ANALYTICAL INTRODUCTION. + +One large 8vo Volume, 750 Pages, Paper Covers, Price, $3. + +The decision of the aggregate votes cast for a President is the +greatest and most important act relating to every such election. How +shall it be done? How shall the result be peacefully and justly +decided? How shall the votes be counted? Upon the satisfactory +solution of this question hangs the existence of the Government. In +these pages the reader will find all that has been proposed or said in +Congress on the subject, together with the entire official action of +Congress in counting the votes at every previous presidential +election. + +All the congressional debates on this subject are printed verbatim +from the reports in "The Annals of Congress," "Congressional Globe," +and "Congressional Record," and in every case the pages of the +original work are given. + + D. APPLETON & CO., PUBLISHERS, + _549 & 551 Broadway, New York._ + + + + + * * * * * + + + + +Transcriber's Notes: + +1. One page of advertisements located at the beginning of the book has + been moved to the end of the book. + +2. 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You may copy it, give it away or +re-use it under the terms of the Project Gutenberg License included +with this eBook or online at <a href = "http://www.gutenberg.org">www.gutenberg.org</a></pre> +<p>Title: The Electoral Votes of 1876</p> +<p> Who Should Count Them, What Should Be Counted, and the Remedy for a Wrong Count</p> +<p>Author: David Dudley Field</p> +<p>Release Date: July 19, 2009 [eBook #29460]</p> +<p>Language: English</p> +<p>Character set encoding: ISO-8859-1</p> +<p>***START OF THE PROJECT GUTENBERG EBOOK THE ELECTORAL VOTES OF 1876***</p> +<p> </p> +<h4 class="pg">E-text prepared by Meredith Bach, Richard J. Shiffer,<br /> + and the Project Gutenberg Online Distributed Proofreading Team<br /> + (<a href="http://www.pgdp.net/c/">http://www.pgdp.net</a>)<br /> + from digital material generously made available by<br /> + Internet Archive/American Libraries<br /> + (<a href="http://www.archive.org/details/americana">http://www.archive.org/details/americana</a>)</h4> +<p> </p> +<table border="0" style="background-color: #ccccff;" cellpadding="10"> + <tr> + <td valign="top"> + Note: + </td> + <td> + Images of the original pages are available through + Internet Archive/American Libraries. See + <a href="http://www.archive.org/details/electoralvote187600fielrich"> + http://www.archive.org/details/electoralvote187600fielrich</a> + </td> + </tr> +</table> +<p> </p> +<hr class="pg" /> +<p> </p> +<p> </p> +<p> </p> + +<h4>THE</h4> +<h1>ELECTORAL VOTES</h1> +<h3>OF 1876:</h3> + +<p> </p> + +<h3><i>WHO SHOULD COUNT THEM, WHAT SHOULD<br /> +BE COUNTED, AND THE REMEDY<br /> +FOR A WRONG COUNT.</i></h3> + +<p> </p> + +<h5>BY</h5> + + +<h3>DAVID DUDLEY FIELD.</h3> + +<p> </p> +<p> </p> + +<h4>NEW YORK:<br /> +<span class="spacious">D. APPLETON AND COMPANY,</span><br /> +549 & 551 BROADWAY.<br /> +1877.</h4> + +<p> </p> + +<h5 class="sc">Copyright by D. APPLETON AND COMPANY, 1877.</h5> + + +<hr /> +<p><span class="pagenum"><a name="Page_3" id="Page_3">[Pg 3]</a></span></p> + +<h2>THE ELECTORAL VOTES OF 1876.</h2> + +<hr class="short" /> + +<p class="sc"> +Who should Count them,<br /> +What should be Counted, and<br /> +The Remedy for a Wrong Count.</p> + + +<p>The electoral votes of 1876 have been cast. The certificates are now +in Washington, or on their way thither, to be kept by the President of +the Senate until their seals are broken in February. The certificates +and the votes of thirty-four of the States are undisputed. The +remaining four are debatable, and questions respecting them have +arisen, upon the decision of which depends the election of the +incoming President. These questions are: Who are to count the votes; +what votes are to be counted; and what is the remedy for a wrong +count? I hope not to be charged with presumption if, in fulfilling my +duty as a citizen, I do what I can toward the answering of these +questions aright; and, though I happen to contribute nothing toward +satisfactory answers, I shall be excused for making the effort.</p> + +<p>The questions themselves have no relation to the relative merits of +the two candidates. Like other voters, I expressed my own preference +on the morning of the election. That duty is discharged; another duty +supervenes, which is, to take care that my vote is counted and allowed +its due place in the summary of the votes. Otherwise the voting +performance becomes ridiculous, and the voter deserves to be laughed +at for his pains. His duty—to cast his vote according to his +<span class="pagenum"><a name="Page_4" id="Page_4">[Pg 4]</a></span>conscience—was clear; it is no less his duty to make the vote felt, +along with other like votes, according to the laws.</p> + +<p>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, in +adjusting the preponderance of the general choice. Whatever may be the +ultimate result of the count, whether his candidate will have lost or +won, is of no importance compared with the maintenance of justice and +the supremacy of law over the preferences and passions of men.</p> + +<p>It concerns the honor of the nation that fraud shall not prevail or +have a chance of prevailing. If a fraudulent count is possible, it is +of little consequence how my vote or the votes of others be cast; for +the supreme will is not that of the honest voter, but of the dishonest +counter; and, when fraud succeeds, or is commonly thought to have +succeeded, the public conscience, shocked at first, becomes weakened +by acquiescence; and vice, found to be profitable, soon comes to be +triumphant. It is of immeasurable importance, therefore, that we +should not only compose the differences that, unfortunately, have +arisen, but compose them upon a basis right in itself and appearing to +be right also.</p> + + +<h3 class="sc">Who should count the Votes?</h3> + +<p>This is the first question. What is meant by counting? In one sense, +it is only enumeration, an arithmetical operation, which in the +present instance consists of addition and subtraction. In another +sense it involves segregation, separation of the false from the true. +If a hundred coins are thrown upon a banker's counter, and his clerk +is told to count the good ones, he has both to select and to +enumerate. He takes such as he finds sufficient in metal and weight, +and rejects the light and counterfeit. So when the Constitution +ordains that "the votes shall then be counted," it means that the true +ones shall be counted, which involves the separation of the true from +the false, if there be present both false and true. In regard to the +agency by which this double process is to be performed, the words of +the Constitution are few: "The President of the Senate shall, in the +presence of the Senate and<span class="pagenum"><a name="Page_5" id="Page_5">[Pg 5]</a></span> House of Representatives, open all the +certificates, and the votes shall then be counted." What would one +take to be the meaning of these words, reading them for the first +time? It is, that somebody besides the President of the Senate is to +count, because, if he was to be the counting officer, the language +would naturally have been that <i>the President of the Senate shall open +all the certificates and count the votes</i>. There must have been a +reason for this change of phraseology. It should seem to follow, from +these words alone, that, whoever is to count, it is not the President +of the Senate. It should seem also to follow, that the counting is to +be done, not in the presence of Senators and Representatives as +individuals, but in the presence of the two Houses as organized +bodies. If their attendance as spectators merely was intended, the +expression would naturally have been, in the presence of the Senators +and Representatives or so many of them as may choose to attend. The +presence of the Senate and House means their presence as the two +Houses of Congress, with a quorum of each, in the plenitude of their +power, as the coördinate branches of the legislative department of the +Government. And inasmuch as no authorities are required to be present +other than the President of the Senate and the two Houses, if the +former is not to count the votes, the two Houses must.</p> + +<p>The meaning which is thus supposed to be the natural one has been +sanctioned by the legislative and executive departments of the +Government, and established by a usage, virtually unbroken, from the +foundation of the Government to the present year.</p> + +<p>The exhaustive publication on the Presidential Counts, just made by +the Messrs. Appleton, leaves little to be said on this head.</p> + +<p>The sole exception suggested, in respect to the usage, is the +resolution of 1789, but that is not really an exception. We have not +the text of the resolution. We know, however, that there was nothing +to be done but adding a few figures. There was no dispute about a +single vote, as all the world knew. But taking the resolution to have +been what the references to it in the proceedings of the two Houses +would<span class="pagenum"><a name="Page_6" id="Page_6">[Pg 6]</a></span> imply, it meant only that a President should be chosen for that +occasion only. The purpose was not to define the functions of any +officer or body, but to go through the <i>ceremony</i> of announcing what +was already known, and to set the government going. No decisions +between existing parties were to be made; no selection of true votes +from false votes, but only an addition of numbers. Individual members +of Congress have undoubtedly in a few instances expressed different +views, but these members have been few, and they have always been in a +hopeless minority. If any one can read the debates, the bills passed +at different times through one House or the other, the joint +resolutions adopted, and the accounts of the votes from time to time +received or rejected, and doubt that the two Houses of Congress have +asserted and maintained, from 1793 until now, their right to accept or +reject the votes of States, and of individual electors of States, all +that I can say is, that he must have a marvelous capacity of doubting. +He must ignore uniform practice as an exponent of constitutions, and +set up his individual misreading of words, reasonably plain in +themselves, against the opinions of almost all who have gone before +him.</p> + +<p>The joint resolution of 1865 is of itself decisive, if a solemn +determination of the two Houses of Congress, approved by the +President, can decide anything. That resolution was in these words:</p> + +<blockquote><p>"<i>Whereas</i>, 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—</p> + +<p>"<i>Be it resolved</i>, 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."</p></blockquote> + +<p>In approving this resolution President Lincoln accompanied<span class="pagenum"><a name="Page_7" id="Page_7">[Pg 7]</a></span> it with +the following message, parts of which I will italicize:</p> + +<blockquote><p>"<i>To the Honorable the Senate and House of Representatives:</i></p> + +<p>"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, <i>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</i>, 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."</p></blockquote> + +<p>If this resolution of the two Houses was authorized by the +Constitution, there is no ground for maintaining the power of the +President of the Senate to decide the question of receiving or +rejecting votes. For, if he has the power under the Constitution, he +cannot waive it, nor can any action of Congress take it away. The +resolution of 1865 had the sanction of each House, was signed by the +President of the Senate and the Speaker of the House, and was approved +by the President. It should set the question of the power of the two +Houses forever at rest.</p> + +<p>The joint rule, first adopted in 1865, and continued in force for ten +years, asserted the same control. It should not have been adopted if +the pretensions now set up for the President of the Senate were of +force; and he might at any time have disregarded it as worthless. But +he did not disregard it; he did not question it; he obeyed it.</p> + +<p>The action of the present Houses, moreover, is an affirmance of their +right to eliminate the false votes from the true. Else why these +committees of each House, investigating at Washington and in the North +and South? Are all the labor and expense of these examinations +undertaken solely in order that the results may be laid before the +President of the Senate for <i>his</i> supreme judgment in the premises? It +is safe to say that there is not a single member of either House who<span class="pagenum"><a name="Page_8" id="Page_8">[Pg 8]</a></span> +would not laugh you in the face for asking seriously the question.</p> + +<p>Assuming, then, that the power to decide what votes shall be counted +belongs to the two Houses, how must they exercise it? Here, again, let +me take the illustration with which I began, of the coins upon a +banker's counter. Let us suppose that, instead of one clerk, two were +told to count them together. When they came to a particular coin upon +which they disagreed, one insisting that it was genuine and the other +that it was counterfeit, what would then happen, if they did their +duty? They would count the rest and lay that aside, reporting the +disagreement to their superior. The two Houses of Congress have, +however, no superior, except the States and the people. To these there +can be no reference on the instant; and the action of the two Houses +must be final for the occasion.</p> + +<p>There can be no decision of the Houses if they disagree, and, as no +other authority can decide, there can be no decision at all. The +counting, including the selection, is an affirmative act; and as two +are to perform it, if performed at all, no count or selection can be +made when the two do not concur. Two judges on the bench cannot render +a judgment when there is a disagreement between them. No more can the +two Houses of Congress. There is here no pretense of alternative +power, playing back and forth between the President of the Senate and +the two Houses. If the former has not power complete and exclusive, he +has none. The result must be that, what the two Houses do not agree to +count, cannot be counted.</p> + + +<h3 class="sc">What Votes should be counted.</h3> + +<p>This is the second question. The votes to be counted are the votes of +the electors. But who are the electors? The persons appointed by the +States, in the manner directed by their Legislatures respectively. How +is the fact of appointment to be proved? These are the subordinate +questions, the answers to which go to make up the answer to the main +question.<span class="pagenum"><a name="Page_9" id="Page_9">[Pg 9]</a></span></p> + +<p>What are the means of separating the genuine from the counterfeit? +Where are the tests by which to distinguish the true votes from the +false?</p> + +<p>The words of the Constitution are not many: "Each State shall appoint, +in such manner as the Legislature thereof may direct, a number of +electors," who shall meet and vote, "make distinct lists of all +persons voted for as President" ... "and of the number of votes for +each, which list, they shall sign and certify and transmit sealed to +the seat of the Government of the United States, directed to the +President of the Senate."</p> + +<p><i>The State</i> must appoint, and the appointment must be made <i>in such +manner</i> as <i>the Legislature</i> thereof may direct. Here are the two +elements of a valid appointment, and they must concur. An appointment +not made by the State, or not made in the manner directed by its +Legislature, is no appointment at all.</p> + +<p>There must be <i>State</i> action in the <i>manner</i> directed. If, for +example, an appointment were made by a State authority, such as the +Governor, without the sanction of the Legislature, it would be void. +If it were made by the people in mass-convention, but not in a manner +directed by the Legislature, it would be void also. And if, on the +other hand, it were made in such manner as the Legislature had +directed, but not made by the State, it would be equally invalid. +Indeed, the Legislature may itself have given a direction in +contravention of the State constitution, and thus the direction prove +a nullity. So, too, the Legislature may have acted in contravention of +the Federal Constitution, and for that reason its direction may have +been void. The appointing power is the State, the manner of its action +is prescribed by the Legislature; the valid authority and the valid +manner of its exercise must concur, to make a valid appointment.</p> + +<p>If, therefore, the persons assuming the office are not appointed <i>by +the State</i>, and <i>in the manner</i> directed by the Legislature, they are +not electors; that is to say, they are not electors <i>de jure</i>; +electors <i>de facto</i> they can hardly become, since their functions +exist but for a moment, and with one act they perish. What is an +appointment by the State? How can <i>a State</i> appoint? I answer, by the +people, the corporators of<span class="pagenum"><a name="Page_10" id="Page_10">[Pg 10]</a></span> the body politic and corporate, or by one +of the departments of its government, as established by its +constitution. The power to appoint cannot be renounced or divested. It +must ever remain in the State, a living power, to be called into +action at each recurring election. It cannot be delegated, except as +the different powers of the State are by its constitution delegated to +its great departments of government. If it were otherwise, it might be +delegated to a foreign prince, and delegated in perpetuity. It is no +answer to say that such a delegation <i>would</i> not be made, the question +is, whether it <i>could</i> be made, without violating the Constitution of +the country? I insist that it could not; and that if the Legislature +of New York were to authorize our friend the Emperor Alexander, or our +excellent neighbor the Governor-General of Canada, to appoint the +thirty-five presidential electors to which New York is entitled in the +sum total of the electoral colleges, and the electors thus appointed +were to receive the certificate of the Governor of New York, and to +meet, vote, and transmit their certificates to Washington, the votes +might be lawfully rejected. Such an occurrence is in the highest +degree improbable; but stranger things than that have happened. The +Empress Catharine intervened in the election of the kings of Poland, +and the interference led to the downfall of the government and the +blotting of the country from the map of Europe. Indeed, I venture to +express my belief, that such an intervention of foreign influence in +our elections would have been hardly more startling to the +imaginations of our fathers than the spectacle which our own eyes have +seen; federal soldiers removing representatives from the Capitol of +one State, and stationed at the doors of another, to inspect the +certificates of members elected to its Legislature.</p> + +<p>Not to go abroad, however, for illustrations, let us suppose that the +General Court convened in the State-House at Boston were to depute the +State of New York or the State of Virginia to appoint electors for the +State of Massachusetts, no man would be wild enough to pronounce such +a deputation valid. It should seem to be certain, for a reason hardly +less satisfactory, that the Legislature of Massachusetts could not +authorize the Mayor of Boston or the town council of Worcester<span class="pagenum"><a name="Page_11" id="Page_11">[Pg 11]</a></span> to +appoint her electors; and, if that be so, and the rule is to prevail +that, in law, what cannot be done directly cannot be done indirectly, +it should follow that the State could not delegate to any other agency +the power of appointment. If a body called a returning board be so +constituted as that, in certain contingencies, it may depart from the +inquiry what votes have been cast, and cast the votes itself, or by +<i>any sort of contrivance</i> do the same thing under a different name, or +by a roundabout process, it is, to that extent, an unlawful body under +the Federal Constitution. Assuming, then, that a returning board has +among its functions that of rejecting the votes in particular +districts, for the reason either that they were affected by undue +influence, or that other voters were led by like influence to refrain +from voting, can such a function be valid under the Constitution of +the United States? There is no question were of throwing out +particular votes for vices inherent in themselves, such as that they +were illegible, or were cast by disqualified persons, and the like; +but the question is of rejecting the votes of a certain number—say a +thousand voters—either because they were unduly influenced, or +because another thousand, who might have voted, were, by undue +influences, prevented from voting at all.</p> + +<p>Whatever may be the law of a State in respect to the choice of its own +officers, it seems most reasonable to hold that, under that common +Constitution which governs and provides for all the States alike, when +the only legitimate inquiry is whom has a particular <i>State</i> +appointed, in the manner directed by its Legislature, and the +Legislature has directed the appointment to be made by a general +election, that is, by the votes of all qualified persons, the only +valid office of a returning board must be to ascertain and declare how +the State has actually voted, not how it might or would have voted +under other circumstances, or, in other words, what is the number of +legal votes actually cast; not how many have been unduly influenced, +or how many other votes would have been cast in a different state of +affairs. I use the expression undue influence, as more comprehensive +than riot, bribery, or intimidation, and including other forms of +improper influence, such as that of capital over labor. The<span class="pagenum"><a name="Page_12" id="Page_12">[Pg 12]</a></span> question +should be put in a general form to be correctly answered, because +there is nothing in intimidation by violence which would make it a +good cause for exclusion, more than that other kind of intimidation, +which is social or financial. If, in ascertaining the state of the +vote, it be lawful to inquire whether certain voters were frightened +by a rifle-club to stay away from the polls, or to vote as the club +dictated, it must also be lawful to inquire whether the same number of +voters were induced to vote or not to vote by fear that their +discounts might be lessened at the village bank, or their employment +discontinued 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 or +was not exerted, for I am inquiring into the law as applicable to +certain alleged facts, leaving the truth of the allegations to be +dealt with by others.</p> + +<p>The sole object of all the machinery of elections, the ballots, the +ballot-boxes, the canvassers and supervisors of elections, the returns +and the returning boards, is, to ascertain the will of the people. +Nobody supposes that that will is ascertained to a certainty. An +approximation only is possible under our present system. To say +nothing of the exclusion of women from an expression of their will, a +portion only—though it may be a large portion—of the men express +theirs. The sick, the infirm, the absent, say nothing. The +registration is always in excess of the vote, and the number of voters +falls short of the registration. The reason is patent: many voters are +absent at the time of registration, or are otherwise unable or +unmindful to register; and when the time of voting arrives many of +those who are registered are absent or prevented from attendance. The +registration may generally be had on any one of several days, while +the voting is to be done on one day. The machinery is imperfect and +clumsy at best; but that is not a reason for making it worse, or +depriving ourselves of the advantages which it yields, notwithstanding +its imperfections. The nearest approach to absolute justice that we +can now hope to make is to <i>take the votes</i> of all the voters who +offer themselves, and <i>count the votes that are taken</i>. Every scheme +of counting out legal<span class="pagenum"><a name="Page_13" id="Page_13">[Pg 13]</a></span> votes cast, or counting in votes not cast, must +result in confusion, uncertainty, and fraud. No matter how specious +the argument may be, it will always mislead, for the reason that it +must in its nature substitute conjecture for fact. The vote must, of +course, be legal, it must be intelligible; but such a vote when +offered must be taken, and when taken counted.</p> + +<p>The throwing out of all the votes of certain districts is but another +mode of accomplishing the same result as would be effected by the +rejection and addition of votes in the cases supposed: for, if there +be 10,000 voters in the district, and 5,000 only vote, it can make no +difference whether the 5,000 be rejected, or be allowed to remain and +the same number be added to the other side.</p> + +<p>If the Legislature of a State were to resolve beforehand that no votes +should be taken in certain counties or parishes, should we not say +that the vote of the remaining counties or parishes would not express +the vote of the State? If, in a particular parish, with twenty +polling-precincts, ten of the precincts are so disturbed by violence +that 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 should +no result be declared because half of the voters are prevented from +voting? The practice of a State must be consistent with itself. When +the votes of three-fourths of a State are proffered as the vote of the +State, the votes of three-fourths of a parish must be received as the +vote of the parish. If there was not a "fair and free election" in +one-fourth of the parishes, there was not a "fair and free election" +in the State; and the just result should be, that, instead of +rejecting the votes of those parishes because a portion of the voters +were intimidated, the votes of the <i>State</i> should be rejected +altogether.</p> + +<p>But why, let me ask, should lawful votes in any case be rejected, +because other lawful votes might have been given? If they, whose votes +were cast, had prevented other votes from being also cast, that might +be a reason for punishing the former. But if the former were +blameless, where is the justice of punishing them for the faults of +others? Suppose a parish with 10,000 persons entitled to vote, and +divided into ten precincts.<span class="pagenum"><a name="Page_14" id="Page_14">[Pg 14]</a></span> Ordinarily only 8,000 will register and +6,000 vote; the vote of the 6,000 being assumed to be an expression of +the will of the 10,000. At a particular election 3,000 persons vote in +five of the precincts. In the other five only 1,000 vote, there being +disturbances on or before the day of election. It is alleged that the +last 1,000 votes should not be counted. Why not? Because, say the +objectors, 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 if +they had voted at all, they would have outvoted the 1,000. Are not +these the merest assumptions? You cannot get the truth without knowing +the motives which kept voters away, and how they would have voted if +they had come. You cannot know either with certainty, without +examining all the voters. And the theory which would lead you to call +them for examination should also lead you to call all who in other +cases have not voted, to ask why they kept away, and how they would +have voted if they had been present. The argument which justifies the +exclusion in case of intimidation would include all cases of absence +and of inquiry into what would have been the result if there had been +no absence. Intimidation is one kind of undue influence; expectation +of benefit is another; fear of social ostracism is another: will you +go into them? There seems no middle course between excluding all +inquiry into the causes of absence and the probable votes of the +absent, and allowing it in every instance where persons entitled to +vote have not voted. To my thinking, a certificate given after the +elimination of votes, in the manner indicated, certifying that the +electors have been chosen by the people of the State, is a palpable +falsehood. <i>It should have certified that they had been chosen by the +people of so many parishes or counties, out of the whole number.</i></p> + +<p>It is impossible, without deranging our system of election, either to +reject votes actually cast, out of consideration for the motives with +which they were cast, or to add to them the supposed votes which might +have been cast. The ballot itself is a standing protest against +inquiry into motives. It enjoins and protects the secret of the hand; +much more should it enjoin and protect the secret of the heart. And as +for adding<span class="pagenum"><a name="Page_15" id="Page_15">[Pg 15]</a></span> votes, on the supposition that they might or would have +been cast but for untoward circumstances, no plausible reason can be +given for it which would not apply to any case of disappointment in +the fullness of the vote. A rainy day of election costs one of the +parties thousands of ballots. If it happen to rain on that day, why +not order a new election in better weather; or, to save that +formality, make an estimate of the number who would have attended +under a cloudless sky, and add their ballots to one side or the other? +The rejection of the votes of a parish can be justified, if +justifiable at all, only on the ground that the votes cast do not give +the voice of the parish, either because they did not express the real +wishes of the voters, or because they would have been overborne by +other votes if they could have been cast.</p> + +<p>Does not the foregoing reasoning lead to this conclusion, that whether +the charges of intimidation in certain counties or parishes of a State +be founded in fact or in error, they do not warrant the rejection of +the votes actually cast in those counties or parishes; and, +furthermore, that they who insist upon such rejection must accept, as +a logical conclusion, the rejection, for a like reason, of the votes +of the whole State? I submit that such are the inevitable conclusions.</p> + +<p>It is insisted, however, that this is an inquiry which cannot be gone +into in the present state of the canvass. Certificates have been sent +to Washington, purporting to give the result of the election. The +question will probably arise, at the meeting of the two Houses, in +this manner: Two certificates are required, one signed by the +electors, pursuant to the Constitution, certifying their own votes; +and the other signed by or under the direction of the Governor of the +State, pursuant to act of Congress, certifying the appointment of the +electors. Both certificates are sent to the President of the Senate, +in one envelope. It may indeed happen that two envelopes come from the +same State, each containing two certificates of rival governors, and +rival electors. If there is but one envelope, one of the certificates +which should be there may be omitted, or may be imperfect. In all +these cases, it is manifestly incumbent upon the two Houses to receive +or reject, in<span class="pagenum"><a name="Page_16" id="Page_16">[Pg 16]</a></span> the exercise of their judgment. But if one envelope +only is presented, containing the two certificates, both in due form, +and objection is nevertheless made that the certificate of the +appointment 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 such +as they please. But is not that a <i>non sequitur</i>? The States may +appoint whom they please, in such manner as their Legislatures have +directed, but an appointment and a certificate are different things. +The latter is, at the very best, only evidence of the former. The fact +to be determined is the appointment; the certificate is produced as +evidence; it may be controvertible or incontrovertible, as the law may +have provided, but there is nothing in the nature of a certificate +which forbids inquiry into its verity; it is not a revelation from +above; it is a paper made by men, fallible always, and sometimes +dishonest as well as fallible; and, if honest, often deceived. It is +made generally in secret and <i>ex parte</i>, without hearing both sides, +without oral testimony, without cross-examination. Of such evidence it +may be safely affirmed, that it is never made final and conclusive +without positive law to that express effect.</p> + +<p>Now, it may be competent for the Legislature of a State, under its own +constitution, to determine how far one of its own records shall be +conclusive between its own citizens. It may enact, that the +certificate of a judge of a court of record, of a sheriff, a county +commissioner, a board of tax assessors, or aboard of State canvassers, +shall or shall not be open to investigation. There is, however, no act +of Congress on the subject of the present inquiry, and we are left to +the Constitution itself, with such guides to its true interpretation +as are furnished by just analogy and by history. If it can be shown +that the certificate was corruptly made, by the perpetration of gross +frauds in tampering with the returns, must it nevertheless flaunt its +falsehood in the faces of us all, without the possibility of +contradiction? A President is to be declared elected for thirty-eight +States and forty-two millions of people; the declaration depends upon +the voice, we will suppose, of a single State; that voice is uttered +by her votes;<span class="pagenum"><a name="Page_17" id="Page_17">[Pg 17]</a></span> to learn what those votes are, we are referred to a +certificate, and told that we cannot go behind it. In such case, to +assert that the remaining thirty-seven States are powerless to inquire +into the getting up of this certificate, on the demand of those who +offer to prove the fraud of the whole process, is to assert that we +are the slaves of fraud, and cannot take our necks from the yoke. I do +not believe that such is the law of this land, and I give these +reasons for my belief.</p> + +<p>In the absence of express enactments to the contrary, any judge may +inquire into any fact necessary to his judgment. The point to be +adjudged and declared in the present case is, who has received a +majority of the electoral votes, that is, of valid electoral votes, +not who has received a majority of certificates. A President is to be +elected, not by a preponderance of certification, but by a +preponderance of voting. The certificate is not the fact to be proved, +but evidence of the fact, and one kind of evidence may be overcome by +other and stronger evidence, unless some positive law declares that +the 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 made +unanswerable; that is, though it might be truthfully answered, the law +will not allow it to be answered. Such cases are exceptional, and the +burden of establishing them rests upon him who propounds them. Let +him, therefore, who asserts that the certificate of a returning board +cannot be answered by any number of living witnesses to the contrary, +show that positive law which makes it thus unanswerable. There is +certainly nothing in the Constitution of the United States which makes +it so, as there is no act of Congress to that effect.</p> + +<p>A certificate of a board of returning officers has nothing to liken it +to a judicial record of contentions between parties. The proceeding is +<i>ex parte</i>; or, if there be parties, the other States of the Union are +not represented, however much their rights may be affected; the +evidence is in part at least by one-sided affidavits; the judges may +be interested and partial. What such a board has about it to inspire +confidence or command respect, it is hard to perceive. If there be any +presumption<span class="pagenum"><a name="Page_18" id="Page_18">[Pg 18]</a></span> in its favor, or in favor of the justice of its +judgments, the presumption is as far from indisputable as a disputable +presumption can ever be.</p> + +<p>To recapitulate, we may formulate the question in this manner: <i>Whom +has the State appointed to vote in its behalf for President?</i> The +manner of appointment is the vote of the people, for the Legislature +has so directed. Who, then, are appointed by the people? To state the +question is nearly equivalent to stating what evidence is admissible; +for the question is not, who received the certificate, but who +received the votes; and any evidence showing what votes were cast and +for whom is pertinent and must therefore be admissible, unless +excluded by positive law. The law by which this question is to be +decided is not State, but Federal. If it were otherwise, the State +officers might evade the Constitution altogether, for this ordains +that the appointment shall be by the State, and in such manner as its +Legislature directs; but if the State certificate is conclusive of the +fact, the State authorities may altogether refuse obedience to the +constitution and laws, and save themselves from the consequences by +certifying that they have obeyed them. And they may in like manner +defraud us of our rights, making resistance impossible, by certifying +that they have not defrauded. Indeed, they might make shorter work of +it, and <i>omit the election altogether, writing the certificate in its +stead</i>.</p> + +<p>If the Governor of Massachusetts were to certify the election of the +Tilden electors, and their votes were to be sent to Washington, +instead of those which the Hayes electors have just given in the face +of the world, must the Tilden votes be counted? Must this nation bow +down before a falsehood? To ask the question is to answer it. There is +no law to require it; there can be none until American citizens become +slaves. The nature of the question to be determined, the absence of +any positive law to shut out pertinent evidence, the impolicy of such +an exclusion, its injustice, and the impossibility of maintaining it, +if by any fatality it were for a time established—all these +considerations go to make and fortify the position, that whatever body +has authority to decide how a State has voted, has authority to draw +information<span class="pagenum"><a name="Page_19" id="Page_19">[Pg 19]</a></span> from all the sources of knowledge. The superstitious +veneration of a certificate, which would implicitly believe it, and +shut the eye to other evidence, is as revolting as that of the poor +negro in the swamps of Congo, who bows down before his fetich. The +idolaters, mentioned in Scripture, who took a tree out of the wood, +burned one part of it, hewed the other, and then worshiped it, were +only prototypes of the men of our day, who bow down before a piece of +paper, signed in secret fourteen hundred miles away, asserting as true +what they know or believe to be false.</p> + +<p>It were useless, therefore, to inquire how far the laws of a State +make the certificate of a board of canvassers or of returns conclusive +evidence of the result of an election held in the State. It maybe +admitted that the Supreme Court of Louisiana, for example, has denied +its own competency to go behind the certificate of the board; but even +that decision is entitled to no respect, being made in contravention +of an express provision of the State statute, as the dissenting +opinion of one of the judges clearly shows. Every other State of the +Union, save perhaps one, has decided that the certificate is +impeachable, even in a case where the statute declares that the +canvassers shall "determine what persons have been elected." The +opinion of the Supreme Court of Wisconsin, an extract from which is +given in the Appendix, states and decides the point with clearness and +unanswerable force.</p> + +<p>If what has been said be founded in sound reason, the two Houses of +Congress, when inquiring what votes are to be counted, have the right +to go behind the certificate of any officers of a State, to ascertain +who have and who have not been appointed electors. The evidence which +these Houses will receive upon such inquiry it is for them and them +only to prescribe, in the performance of their highest functions and +the exercise of their sincerest judgment.</p> + + +<h3 class="sc">The Remedy for a Wrong Count</h3> + +<p>is the remaining question. Hitherto, I have endeavored to state in a +popular manner the existing law, as I understand it. I will now ask a +consideration of the needs of future legislation. If there be anything +obscure in the present law,<span class="pagenum"><a name="Page_20" id="Page_20">[Pg 20]</a></span> Congress has the power to make it clear; +if there be danger in our present condition, Congress can remove the +danger. There are various ways of doing it.</p> + +<p>One is to provide for a judicial committee of the two Houses, to sit +in judgment, as if they were judges, and pronounce upon the result of +the evidence. The English House of Commons used to reject or admit +members, from considerations of party. Englishmen have thought that +they had at last succeeded in establishing a tribunal which would +decide with impartiality and justice. We should be able to devise +means equally sure of arriving at a result just in itself, and +satisfactory to all. The considerations in favor of a judicial +committee of the two Houses are cogent, though they may not be +conclusive. They are, the necessity of a speedy decision, and the +desirableness of keeping, if possible, the ordinary courts out of +contact with questions of the greatest political significance.</p> + +<p>But if it be found impossible to agree upon the formation of such a +committee, then a resort to the courts should certainly be had. The +public conscience must be satisfied that the person sitting in our +highest seat of magistracy is there by a just title; and it can be +satisfied of that, in doubtful cases, only by a judicial inquiry.</p> + +<p>An act of Congress might provide either for the case of a double +declaration of the votes, one by each House of Congress, or of a +single declaration by the two Houses acting in concert. In either case +the Supreme Court could be reached only by appeal, and the court of +first instance might be either the Supreme Court of the District of +Columbia or any of the Circuit Courts. The Court of the District +should seem to be the most convenient, the most speedy, and the most +appropriate, as being at the seat of Government.</p> + +<p>For the case of a double declaration it might be provided, that if, +upon the counting of the votes the Senate should find one person +elected and the House another, an information should be immediately +filed in the Supreme Court of the District, in the name of United +States, against both the persons thus designated, alleging the fact, +and calling upon each to sustain his title. The difficulty of this +process would be<span class="pagenum"><a name="Page_21" id="Page_21">[Pg 21]</a></span> how to expedite the proceedings so that a decision +should be had before the 4th of March, in order to avoid an +interregnum. But I think this difficulty could be overcome. To this +end, the time of the courts engaged in the case should be set apart +for it. The rival claimants would naturally be in Washington, prepared +for the investigation. The evidence previously taken by the two +Houses—for they would assuredly have taken it—could be used, with +the proper guards against hearsay testimony, and any additional +evidence necessary would probably be ready, if the claimants or their +friends knew beforehand that a trial was likely to be had. It might +indeed happen that the questions to be decided would involve little +dispute about facts; as, for example, the present Oregon case. It +should be provided that the trial must be concluded and judgment +pronounced within a certain number of days, either party being at +liberty to appeal, within twenty-four hours after the judgment, to the +Supreme Court of the United States, by which the appeal should be +heard and decided before the 4th day of March.</p> + +<p>In case of a single declaration, and consequent induction into office, +an information might be filed in the Supreme Court of the District in +the names of the United States and the claimant, against the +incumbent, and proceedings carried on in the ordinary manner of +proceedings in the nature of <i>quo warranto</i>.</p> + +<p>Any lawyer could readily frame a bill to embrace these several +provisions. An amendment of the Constitution would not be necessary. +The provisions would operate as a check upon fraud. They would furnish +a more certain means of establishing the right. The objection that the +courts would thus be brought into connection with politics is the only +objection. But the questions which they would be called upon to +decide, would be questions of law and fact, judicial in their +character, and kindred to those which the courts are every day called +upon to adjudge. The greatness of the station is only a greater reason +for judicial investigation. The dignity of the presidential office is +not accepted as a reason why the incumbent should not be impeached and +tried. It can be no more a reason why<span class="pagenum"><a name="Page_22" id="Page_22">[Pg 22]</a></span> a usurper should not be ousted +and a rightful claimant admitted. The President is undoubtedly higher +in dignity and greater in power than the Governor of a State, but the +reasons why the title of a Governor should be subjected to judicial +scrutiny are of the same kind as those which go to show that the title +of a President of the United States should be subjected, upon +occasion, to a like scrutiny. The process was tried and found useful +in the Capitol of Wisconsin, and, for similar reasons, it may be tried +and found useful in the Capitol of the Union. So far from degrading +the office, or offending the people to whom the office belongs, it can +but help to make fraud less defiant and right more safe, and add a new +crown to the majesty of law. That triumph of peace and justice in +Wisconsin has, to the eye of reason, given an added glory to her +prairies and hills, and a brighter light to the waters of her shining +lakes.</p> + + + +<hr /> +<h2>APPENDIX.</h2> + +<p><i>Observations of the Chief Justice Whiton, of Wisconsin, respecting +the force of a certificate of canvassers:</i></p> + + +<blockquote><p>"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 <i>Wis.</i>, 792.)</p></blockquote> + + + +<hr /> +<h2>APPLETONS' PERIODICALS.</h2> + +<hr class="short" /> + +<h3>APPLETONS' JOURNAL:</h3> + +<h4>A MONTHLY MISCELLANY OF POPULAR LITERATURE.</h4> + +<hr class="tiny tight" /> + +<h4 class="close">NEW SERIES.</h4> + +<hr class="tiny tight" /> + +<h5 class="close"><i>TWENTY-FIVE CENTS PER NUMBER. THREE DOLLARS PER ANNUM.</i></h5> + +<hr class="tiny tight" /> + +<p><span class="smcap">Appletons' Journal</span> is now published monthly; it is devoted to popular +literature and all matters of taste and general culture—published at +a price to bring it within the reach of all classes. It contains +superior fiction, in the form of serials and short stories; papers +graphically descriptive of picturesque places; articles upon men of +note, and upon the habits of different peoples; essays upon household +and social topics; articles of travel and adventure; scientific and +industrial articles written in a graphic and popular style. In brief, +the aim is to be comprehensive, including in its plan all branches of +literature and all themes of interest to intelligent readers. Each +number is illustrated.</p> + +<p><span class="smcap">Terms</span>: Three dollars per annum, postage prepaid, to all subscribers in +the United States; or Twenty-five Cents per number. A Club of Four +Yearly Subscriptions will entitle the sender to an extra subscription +gratis; that is, five copies will be sent one year for twelve dollars. +For $7.20, <span class="smcap">Appletons' Journal</span> and <span class="smcap">The Popular Science Monthly</span> (full +price, eight dollars), postage prepaid.</p> + +<hr class="short" /> + +<h3>THE POPULAR SCIENCE MONTHLY.</h3> + +<h4>Conducted by E. L. YOUMANS.</h4> + +<p>This periodical was started (in 1872) to promote the diffusion of +valuable scientific knowledge, in a readable and attractive form, +among all classes of the community, and has thus far met a want +supplied by no other magazine in the United States.</p> + +<p>Containing instructive and interesting articles and abstracts of +articles, original, selected, translated, and illustrated, from the +pens of the leading scientific men of different countries; accounts of +important scientific discoveries, the application of science to the +practical arts, and the latest views put forth concerning natural +phenomena, have been given by <i>savants</i> of the highest authority. +Prominent attention has been also devoted to those various sciences +which help to a better understanding of the nature of man, to the +bearings of science upon the questions of society and government, to +scientific education, and to the conflicts which spring from the +progressive nature of scientific knowledge.</p> + +<p><span class="smcap">The Popular Science Monthly</span> is published monthly in a large octavo, +handsomely printed on clear type, and, when the subjects admit, fully +illustrated.</p> + +<p><span class="smcap">Terms</span>: $5.00 per annum, or Fifty Cents per Number. Postage prepaid to +all Subscribers in the United States.</p> + +<hr class="short" /> + +<h3>THE ART JOURNAL:</h3> + +<h4><i>An International Gallery of Engravings</i>,</h4> + +<h5>BY DISTINGUISHED ARTISTS OF EUROPE AND AMERICA;</h5> + +<h5 class="sc">With Illustrated Papers in the Various Branches of Art.</h5> + +<p><span class="smcap">The Art Journal</span> is a monthly publication, quarto size, superbly +illustrated and printed, and specially devoted to the world of +Art—Painting, Sculpture, Architecture, Decoration, Engraving, +Etching, Enameling, and Designing in all its branches—having in view +the double purpose of supplying a complete illustrated record of +progress in the Arts, and of affording a means for the cultivation of +Art-taste among the people. Each number is richly and abundantly +illustrated on both steel and wood, and no pains are spared to render +this "<span class="smcap">Art Journal</span>" the most valuable publication of the kind in the +world. It contains the Steel Plates and Illustrations of the <span class="smcap">London +Art Journal</span>, a publication of world-wide fame (the exclusive right of +which, for Canada and the United States, has been purchased by the +publishers); with <i>extensive additions devoted principally to American +Art and American topics</i>. <i>Published monthly.</i> <i>Sold only by +Subscription.</i> Price, 75 Cents per Number; $9.00 per Annum, postage +prepaid.</p> + +<p>Subscriptions received by the Publishers, or their Agents. <span class="smcap">Agencies</span>: +22 Hawley St., Boston; 922 Chestnut St., Philadelphia; 22 Post-Office +Avenue, Baltimore; 53 Ninth St., Pittsburg; 100 State St., Albany; 42 +State St., Rochester; 103 State St., Chicago; 30 W. 4th St., +Cincinnati; 305 Locust St., St. Louis; 20 St. Charles St., New +Orleans; 230 Sutter St., San Francisco.</p> + +<p class="right"> +<i>D. APPLETON & CO., Publishers, 549 & 551 Broadway, N. Y.</i></p> + + + +<hr /> +<h2>APPLETONS'</h2> + +<h1>AMERICAN CYCLOPÆDIA.</h1> + +<h3>NEW REVISED EDITION.</h3> + +<p class="center"><i>Entirely rewritten by the ablest writers an every subject. Printed +from new type, and illustrated with Several Thousand Engravings and +Maps.</i></p> + + +<p>The work originally published under the title of <span class="smcap">The New American +Cyclopædia</span> was completed in 1863, since which time the wide +circulation which it has attained in all parts of the United States, +and the signal developments which have taken place in every branch of +science, literature, and art, have induced the editors and publishers +to submit it to an exact and thorough revision, and to issue a new +edition entitled <span class="smcap">The American Cyclopædia</span>.</p> + +<p>Within the last ten years the progress of discovery in every +department of knowledge has made a new work of reference an imperative +want.</p> + +<p>The movement of political affairs has kept pace with the discoveries +of science, and their fruitful application to the industrial and +useful arts and the convenience and refinement of social life. Great +wars and consequent revolutions have occurred, involving national +changes of peculiar moment. The civil war of our own country, which +was at its height when the last volume of the old work appeared, has +happily been ended, and a new course of commercial and industrial +activity has been commenced.</p> + +<p>Large accessions to our geographical knowledge have been made by the +indefatigable explorers of Africa.</p> + +<p>The great political revolutions of the last decade, with the natural +result of the lapse of time, have brought into public view a multitude +of new men, whose names are in every one's mouth, and of whose lives +every one is curious to know the particulars. Great battles have been +fought, and important sieges maintained, of which the details are as +yet preserved only in the newspapers, or in the transient publications +of the day, but which ought now to take their place in permanent and +authentic history.</p> + +<p>In preparing the present edition for the press, it has accordingly +been the aim of the editors to bring down the information to the +latest possible dates, an to furnish an accurate account of the most +recent discoveries in science, of every fresh production in +literature, and the newest inventions in the practical arts, as well +as to give a succinct and original record of the progress of political +and historical events.</p> + +<p>The work has been begun after long and careful preliminary labor, and +with the most ample resources for carrying it on to a successful +termination.</p> + +<p>None of the original stereotype plates have been used, but every page +has been printed on new type, forming in fact a new Cyclopædia, with +the same plan and compass as its predecessor, but with a far greater +pecuniary expenditure, and with such improvements in its composition +as have been suggested by longer experience and enlarged knowledge.</p> + +<p>The illustrations, which are introduced for the first time in the +present edition, have been added not for the sake of pictorial effect, +but to give greater lucidity and force to the explanations in the +text. They embrace all branches of science and of natural history, and +depict the most famous and remarkable features of scenery, +architecture, and art, as well as the various processes of mechanics +and manufactures. Although intended for instruction rather than +embellishment, no pains have been spared to insure their artistic +excellence; the cost of their execution is enormous, and it is +believed that they will find a welcome reception as an admirable +feature of the Cyclopædia, and worthy of its high character.</p> + +<p>This work is sold to subscribers only, payable on delivery of each +volume. It is now completed in sixteen large octavo volumes, each +containing over 800 pages, fully illustrated with several thousand +Wood Engravings, and with numerous colored Lithographic Maps.</p> + +<h4><b>PRICE AND STYLE OF BINDING.</b></h4> + + +<div class="center"> +<table class="dense" summary="prices"> +<tr><td class="left"><i>In extra cloth, per vol.</i></td><td class="right">$5.00</td><td class="bl left"><i>In half russia, extra gilt, per vol.</i></td><td class="right">$8.00</td></tr> +<tr><td class="left"><i>In library leather, per vol.</i></td><td class="right">6.00</td><td class="bl left"><i>In full morocco antique, gilt edges, per vol.</i></td><td class="right">10.00</td></tr> +<tr><td class="left"><i>In half turkey morocco, per vol.</i></td><td class="right"> 7.00</td><td class="bl left"><i>In full russia, per vol.</i></td><td class="right">10.00</td></tr> +</table></div> + +<p>Specimen pages of the <span class="smcap">American Cyclopædia</span>, showing type, +illustrations, etc., will be sent gratis, on application.</p> + +<p class="right"><span class="smcap">D. APPLETON & CO., Publishers,</span><br /> +549 & 551 Broadway, New York.</p> + + + +<hr /> +<h3>THE</h3> +<h1>PRESIDENTIAL COUNTS:</h1> + +<h3>A COMPLETE OFFICIAL RECORD</h3> + +<h3><i>OF THE PROCEEDINGS OF CONGRESS AT THE COUNTING<br /> +OF THE ELECTORAL VOTES IN ALL THE ELECTIONS<br /> +OF PRESIDENT AND VICE-PRESIDENT OF THE<br /> +UNITED STATES; TOGETHER WITH ALL<br /> +CONGRESSIONAL LEGISLATION<br /> +INCIDENT THERETO, OR TO<br /> +PROPOSED LEGISLATION<br /> +UPON THAT SUBJECT.</i></h3> + +<h4>WITH AN ANALYTICAL INTRODUCTION.</h4> + +<hr class="tight tiny" /> +<h4 class="close">One large 8vo Volume, 750 Pages, Paper Covers, Price, $3.</h4> +<hr class="tight tiny" /> + +<p><span class="sc">The</span> decision of the aggregate votes cast for a President is the +greatest and most important act relating to every such election. How +shall it be done? How shall the result be peacefully and justly +decided? How shall the votes be counted? Upon the satisfactory +solution of this question hangs the existence of the Government. In +these pages the reader will find all that has been proposed or said in +Congress on the subject, together with the entire official action of +Congress in counting the votes at every previous presidential +election.</p> + +<p>All the congressional debates on this subject are printed verbatim +from the reports in "The Annals of Congress," "Congressional Globe," +and "Congressional Record," and in every case the pages of the +original work are given.</p> + +<p class="right"><span class="sc spacious">D. APPLETON & CO.,</span>Publishers,<br /> +<b><i>549 & 551 Broadway, New York.</i></b></p> + +<hr class="full" /> + +<div class="trans-note"> +<p class="heading">Transcriber's Note:</p> + +<p>1. One page of advertisements located at the beginning of the book +has been moved to the end of the book.</p> + +<p>2. On the second to last page of advertisements, the sentence +beginning "Specimen pages of the AMERICAN CYCLOPÆDIA..." was +preceded by an inverted asterism.</p> +</div> + +<p> </p> +<hr class="pg" /> +<p>***END OF THE PROJECT GUTENBERG EBOOK THE ELECTORAL VOTES OF 1876***</p> +<p>******* This file should be named 29460-h.txt or 29460-h.zip *******</p> +<p>This and all associated files of various formats will be found in:<br /> +<a href="http://www.gutenberg.org/dirs/2/9/4/6/29460">http://www.gutenberg.org/2/9/4/6/29460</a></p> +<p>Updated editions will replace the previous one--the old editions +will be renamed.</p> + +<p>Creating the works from public domain print editions means that no +one owns a United States copyright in these works, so the Foundation +(and you!) can copy and distribute it in the United States without +permission and without paying copyright royalties. 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You may copy it, give it away or +re-use it under the terms of the Project Gutenberg License included +with this eBook or online at www.gutenberg.org + + + + + +Title: The Electoral Votes of 1876 + Who Should Count Them, What Should Be Counted, and the Remedy for a Wrong Count + + +Author: David Dudley Field + + + +Release Date: July 19, 2009 [eBook #29460] + +Language: English + +Character set encoding: ISO-646-US (US-ASCII) + + +***START OF THE PROJECT GUTENBERG EBOOK THE ELECTORAL VOTES OF 1876*** + + +E-text prepared by Meredith Bach, Richard J. Shiffer, and the Project +Gutenberg Online Distributed Proofreading Team (http://www.pgdp.net) from +digital material generously made available by Internet Archive/American +Libraries (http://www.archive.org/details/americana) + + + +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 Should +Be Counted, and the Remedy +for 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 now +in Washington, or on their way thither, to be kept by the President of +the Senate until their seals are broken in February. The certificates +and the votes of thirty-four of the States are undisputed. The +remaining four are debatable, and questions respecting them have +arisen, upon the decision of which depends the election of the +incoming President. These questions are: Who are to count the votes; +what votes are to be counted; and what is the remedy for a wrong +count? I hope not to be charged with presumption if, in fulfilling my +duty as a citizen, I do what I can toward the answering of these +questions aright; and, though I happen to contribute nothing toward +satisfactory answers, I shall be excused for making the effort. + +The questions themselves have no relation to the relative merits of +the two candidates. Like other voters, I expressed my own preference +on the morning of the election. That duty is discharged; another duty +supervenes, which is, to take care that my vote is counted and allowed +its due place in the summary of the votes. Otherwise the voting +performance becomes ridiculous, and the voter deserves to be laughed +at for his pains. His duty--to cast his vote according to his +conscience--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, in +adjusting the preponderance of the general choice. Whatever may be the +ultimate result of the count, whether his candidate will have lost or +won, is of no importance compared with the maintenance of justice and +the supremacy of law over the preferences and passions of men. + +It concerns the honor of the nation that fraud shall not prevail or +have a chance of prevailing. If a fraudulent count is possible, it is +of little consequence how my vote or the votes of others be cast; for +the supreme will is not that of the honest voter, but of the dishonest +counter; and, when fraud succeeds, or is commonly thought to have +succeeded, the public conscience, shocked at first, becomes weakened +by acquiescence; and vice, found to be profitable, soon comes to be +triumphant. It is of immeasurable importance, therefore, that we +should not only compose the differences that, unfortunately, have +arisen, but compose them upon a basis right in itself and appearing to +be 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 the +present instance consists of addition and subtraction. In another +sense it involves segregation, separation of the false from the true. +If a hundred coins are thrown upon a banker's counter, and his clerk +is told to count the good ones, he has both to select and to +enumerate. He takes such as he finds sufficient in metal and weight, +and rejects the light and counterfeit. So when the Constitution +ordains that "the votes shall then be counted," it means that the true +ones shall be counted, which involves the separation of the true from +the false, if there be present both false and true. In regard to the +agency by which this double process is to be performed, the words of +the Constitution are few: "The President of the Senate shall, in the +presence of the Senate and House of Representatives, open all the +certificates, and the votes shall then be counted." What would one +take to be the meaning of these words, reading them for the first +time? It is, that somebody besides the President of the Senate is to +count, because, if he was to be the counting officer, the language +would naturally have been that _the President of the Senate shall open +all the certificates and count the votes_. There must have been a +reason for this change of phraseology. It should seem to follow, from +these words alone, that, whoever is to count, it is not the President +of the Senate. It should seem also to follow, that the counting is to +be done, not in the presence of Senators and Representatives as +individuals, but in the presence of the two Houses as organized +bodies. If their attendance as spectators merely was intended, the +expression would naturally have been, in the presence of the Senators +and Representatives or so many of them as may choose to attend. The +presence of the Senate and House means their presence as the two +Houses of Congress, with a quorum of each, in the plenitude of their +power, as the coordinate branches of the legislative department of the +Government. And inasmuch as no authorities are required to be present +other than the President of the Senate and the two Houses, if the +former is not to count the votes, the two Houses must. + +The meaning which is thus supposed to be the natural one has been +sanctioned by the legislative and executive departments of the +Government, and established by a usage, virtually unbroken, from the +foundation of the Government to the present year. + +The exhaustive publication on the Presidential Counts, just made by +the Messrs. Appleton, leaves little to be said on this head. + +The sole exception suggested, in respect to the usage, is the +resolution of 1789, but that is not really an exception. We have not +the text of the resolution. We know, however, that there was nothing +to be done but adding a few figures. There was no dispute about a +single vote, as all the world knew. But taking the resolution to have +been what the references to it in the proceedings of the two Houses +would imply, it meant only that a President should be chosen for that +occasion only. The purpose was not to define the functions of any +officer or body, but to go through the _ceremony_ of announcing what +was already known, and to set the government going. No decisions +between existing parties were to be made; no selection of true votes +from false votes, but only an addition of numbers. Individual members +of Congress have undoubtedly in a few instances expressed different +views, but these members have been few, and they have always been in a +hopeless minority. If any one can read the debates, the bills passed +at different times through one House or the other, the joint +resolutions adopted, and the accounts of the votes from time to time +received or rejected, and doubt that the two Houses of Congress have +asserted and maintained, from 1793 until now, their right to accept or +reject the votes of States, and of individual electors of States, all +that I can say is, that he must have a marvelous capacity of doubting. +He must ignore uniform practice as an exponent of constitutions, and +set up his individual misreading of words, reasonably plain in +themselves, against the opinions of almost all who have gone before +him. + +The joint resolution of 1865 is of itself decisive, if a solemn +determination of the two Houses of Congress, approved by the +President, 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 with +the 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 the +Constitution, there is no ground for maintaining the power of the +President of the Senate to decide the question of receiving or +rejecting votes. For, if he has the power under the Constitution, he +cannot waive it, nor can any action of Congress take it away. The +resolution of 1865 had the sanction of each House, was signed by the +President of the Senate and the Speaker of the House, and was approved +by the President. It should set the question of the power of the two +Houses forever at rest. + +The joint rule, first adopted in 1865, and continued in force for ten +years, asserted the same control. It should not have been adopted if +the pretensions now set up for the President of the Senate were of +force; and he might at any time have disregarded it as worthless. But +he did not disregard it; he did not question it; he obeyed it. + +The action of the present Houses, moreover, is an affirmance of their +right to eliminate the false votes from the true. Else why these +committees of each House, investigating at Washington and in the North +and South? Are all the labor and expense of these examinations +undertaken solely in order that the results may be laid before the +President of the Senate for _his_ supreme judgment in the premises? It +is safe to say that there is not a single member of either House who +would not laugh you in the face for asking seriously the question. + +Assuming, then, that the power to decide what votes shall be counted +belongs to the two Houses, how must they exercise it? Here, again, let +me take the illustration with which I began, of the coins upon a +banker's counter. Let us suppose that, instead of one clerk, two were +told to count them together. When they came to a particular coin upon +which they disagreed, one insisting that it was genuine and the other +that it was counterfeit, what would then happen, if they did their +duty? They would count the rest and lay that aside, reporting the +disagreement to their superior. The two Houses of Congress have, +however, no superior, except the States and the people. To these there +can be no reference on the instant; and the action of the two Houses +must be final for the occasion. + +There can be no decision of the Houses if they disagree, and, as no +other authority can decide, there can be no decision at all. The +counting, including the selection, is an affirmative act; and as two +are to perform it, if performed at all, no count or selection can be +made when the two do not concur. Two judges on the bench cannot render +a judgment when there is a disagreement between them. No more can the +two Houses of Congress. There is here no pretense of alternative +power, playing back and forth between the President of the Senate and +the two Houses. If the former has not power complete and exclusive, he +has none. The result must be that, what the two Houses do not agree to +count, cannot be counted. + + +WHAT VOTES SHOULD BE COUNTED. + +This is the second question. The votes to be counted are the votes of +the electors. But who are the electors? The persons appointed by the +States, in the manner directed by their Legislatures respectively. How +is the fact of appointment to be proved? These are the subordinate +questions, the answers to which go to make up the answer to the main +question. + +What are the means of separating the genuine from the counterfeit? +Where are the tests by which to distinguish the true votes from the +false? + +The words of the Constitution are not many: "Each State shall appoint, +in such manner as the Legislature thereof may direct, a number of +electors," who shall meet and vote, "make distinct lists of all +persons voted for as President" ... "and of the number of votes for +each, which list, they shall sign and certify and transmit sealed to +the seat of the Government of the United States, directed to the +President of the Senate." + +_The State_ must appoint, and the appointment must be made _in such +manner_ as _the Legislature_ thereof may direct. Here are the two +elements of a valid appointment, and they must concur. An appointment +not made by the State, or not made in the manner directed by its +Legislature, is no appointment at all. + +There must be _State_ action in the _manner_ directed. If, for +example, an appointment were made by a State authority, such as the +Governor, without the sanction of the Legislature, it would be void. +If it were made by the people in mass-convention, but not in a manner +directed by the Legislature, it would be void also. And if, on the +other hand, it were made in such manner as the Legislature had +directed, but not made by the State, it would be equally invalid. +Indeed, the Legislature may itself have given a direction in +contravention of the State constitution, and thus the direction prove +a nullity. So, too, the Legislature may have acted in contravention of +the Federal Constitution, and for that reason its direction may have +been void. The appointing power is the State, the manner of its action +is prescribed by the Legislature; the valid authority and the valid +manner of its exercise must concur, to make a valid appointment. + +If, therefore, the persons assuming the office are not appointed _by +the State_, and _in the manner_ directed by the Legislature, they are +not electors; that is to say, they are not electors _de jure_; +electors _de facto_ they can hardly become, since their functions +exist but for a moment, and with one act they perish. What is an +appointment by the State? How can _a State_ appoint? I answer, by the +people, the corporators of the body politic and corporate, or by one +of the departments of its government, as established by its +constitution. The power to appoint cannot be renounced or divested. It +must ever remain in the State, a living power, to be called into +action at each recurring election. It cannot be delegated, except as +the different powers of the State are by its constitution delegated to +its great departments of government. If it were otherwise, it might be +delegated to a foreign prince, and delegated in perpetuity. It is no +answer to say that such a delegation _would_ not be made, the question +is, whether it _could_ be made, without violating the Constitution of +the country? I insist that it could not; and that if the Legislature +of New York were to authorize our friend the Emperor Alexander, or our +excellent neighbor the Governor-General of Canada, to appoint the +thirty-five presidential electors to which New York is entitled in the +sum total of the electoral colleges, and the electors thus appointed +were to receive the certificate of the Governor of New York, and to +meet, vote, and transmit their certificates to Washington, the votes +might be lawfully rejected. Such an occurrence is in the highest +degree improbable; but stranger things than that have happened. The +Empress Catharine intervened in the election of the kings of Poland, +and the interference led to the downfall of the government and the +blotting of the country from the map of Europe. Indeed, I venture to +express my belief, that such an intervention of foreign influence +in our elections would have been hardly more startling to the +imaginations of our fathers than the spectacle which our own eyes have +seen; federal soldiers removing representatives from the Capitol of +one State, and stationed at the doors of another, to inspect the +certificates of members elected to its Legislature. + +Not to go abroad, however, for illustrations, let us suppose that the +General Court convened in the State-House at Boston were to depute the +State of New York or the State of Virginia to appoint electors for the +State of Massachusetts, no man would be wild enough to pronounce such +a deputation valid. It should seem to be certain, for a reason hardly +less satisfactory, that the Legislature of Massachusetts could not +authorize the Mayor of Boston or the town council of Worcester to +appoint her electors; and, if that be so, and the rule is to prevail +that, in law, what cannot be done directly cannot be done indirectly, +it should follow that the State could not delegate to any other agency +the power of appointment. If a body called a returning board be so +constituted as that, in certain contingencies, it may depart from the +inquiry what votes have been cast, and cast the votes itself, or by +_any sort of contrivance_ do the same thing under a different name, or +by a roundabout process, it is, to that extent, an unlawful body under +the Federal Constitution. Assuming, then, that a returning board has +among its functions that of rejecting the votes in particular +districts, for the reason either that they were affected by undue +influence, or that other voters were led by like influence to refrain +from voting, can such a function be valid under the Constitution of +the United States? There is no question were of throwing out +particular votes for vices inherent in themselves, such as that they +were illegible, or were cast by disqualified persons, and the like; +but the question is of rejecting the votes of a certain number--say a +thousand voters--either because they were unduly influenced, or +because another thousand, who might have voted, were, by undue +influences, prevented from voting at all. + +Whatever may be the law of a State in respect to the choice of its own +officers, it seems most reasonable to hold that, under that common +Constitution which governs and provides for all the States alike, when +the only legitimate inquiry is whom has a particular _State_ +appointed, in the manner directed by its Legislature, and the +Legislature has directed the appointment to be made by a general +election, that is, by the votes of all qualified persons, the only +valid office of a returning board must be to ascertain and declare how +the State has actually voted, not how it might or would have voted +under other circumstances, or, in other words, what is the number of +legal votes actually cast; not how many have been unduly influenced, +or how many other votes would have been cast in a different state of +affairs. I use the expression undue influence, as more comprehensive +than riot, bribery, or intimidation, and including other forms of +improper influence, such as that of capital over labor. The question +should be put in a general form to be correctly answered, because +there is nothing in intimidation by violence which would make it a +good cause for exclusion, more than that other kind of intimidation, +which is social or financial. If, in ascertaining the state of the +vote, it be lawful to inquire whether certain voters were frightened +by a rifle-club to stay away from the polls, or to vote as the club +dictated, it must also be lawful to inquire whether the same number of +voters were induced to vote or not to vote by fear that their +discounts might be lessened at the village bank, or their employment +discontinued 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 or +was not exerted, for I am inquiring into the law as applicable to +certain alleged facts, leaving the truth of the allegations to be +dealt with by others. + +The sole object of all the machinery of elections, the ballots, the +ballot-boxes, the canvassers and supervisors of elections, the returns +and the returning boards, is, to ascertain the will of the people. +Nobody supposes that that will is ascertained to a certainty. An +approximation only is possible under our present system. To say +nothing of the exclusion of women from an expression of their will, a +portion only--though it may be a large portion--of the men express +theirs. The sick, the infirm, the absent, say nothing. The +registration is always in excess of the vote, and the number of voters +falls short of the registration. The reason is patent: many voters are +absent at the time of registration, or are otherwise unable or +unmindful to register; and when the time of voting arrives many of +those who are registered are absent or prevented from attendance. The +registration may generally be had on any one of several days, while +the voting is to be done on one day. The machinery is imperfect and +clumsy at best; but that is not a reason for making it worse, or +depriving ourselves of the advantages which it yields, notwithstanding +its imperfections. The nearest approach to absolute justice that we +can now hope to make is to _take the votes_ of all the voters who +offer themselves, and _count the votes that are taken_. Every scheme +of counting out legal votes cast, or counting in votes not cast, must +result in confusion, uncertainty, and fraud. No matter how specious +the argument may be, it will always mislead, for the reason that it +must in its nature substitute conjecture for fact. The vote must, of +course, be legal, it must be intelligible; but such a vote when +offered must be taken, and when taken counted. + +The throwing out of all the votes of certain districts is but another +mode of accomplishing the same result as would be effected by the +rejection and addition of votes in the cases supposed: for, if there +be 10,000 voters in the district, and 5,000 only vote, it can make no +difference whether the 5,000 be rejected, or be allowed to remain and +the same number be added to the other side. + +If the Legislature of a State were to resolve beforehand that no votes +should be taken in certain counties or parishes, should we not say +that the vote of the remaining counties or parishes would not express +the vote of the State? If, in a particular parish, with twenty +polling-precincts, ten of the precincts are so disturbed by violence +that 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 should +no result be declared because half of the voters are prevented from +voting? The practice of a State must be consistent with itself. When +the votes of three-fourths of a State are proffered as the vote of the +State, the votes of three-fourths of a parish must be received as the +vote of the parish. If there was not a "fair and free election" in +one-fourth of the parishes, there was not a "fair and free election" +in the State; and the just result should be, that, instead of +rejecting the votes of those parishes because a portion of the voters +were intimidated, the votes of the _State_ should be rejected +altogether. + +But why, let me ask, should lawful votes in any case be rejected, +because other lawful votes might have been given? If they, whose votes +were cast, had prevented other votes from being also cast, that might +be a reason for punishing the former. But if the former were +blameless, where is the justice of punishing them for the faults of +others? Suppose a parish with 10,000 persons entitled to vote, and +divided into ten precincts. Ordinarily only 8,000 will register and +6,000 vote; the vote of the 6,000 being assumed to be an expression of +the will of the 10,000. At a particular election 3,000 persons vote in +five of the precincts. In the other five only 1,000 vote, there being +disturbances on or before the day of election. It is alleged that the +last 1,000 votes should not be counted. Why not? Because, say the +objectors, 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 if +they had voted at all, they would have outvoted the 1,000. Are not +these the merest assumptions? You cannot get the truth without knowing +the motives which kept voters away, and how they would have voted if +they had come. You cannot know either with certainty, without +examining all the voters. And the theory which would lead you to call +them for examination should also lead you to call all who in other +cases have not voted, to ask why they kept away, and how they would +have voted if they had been present. The argument which justifies the +exclusion in case of intimidation would include all cases of absence +and of inquiry into what would have been the result if there had been +no absence. Intimidation is one kind of undue influence; expectation +of benefit is another; fear of social ostracism is another: will you +go into them? There seems no middle course between excluding all +inquiry into the causes of absence and the probable votes of the +absent, and allowing it in every instance where persons entitled to +vote have not voted. To my thinking, a certificate given after the +elimination of votes, in the manner indicated, certifying that the +electors have been chosen by the people of the State, is a palpable +falsehood. _It should have certified that they had been chosen by the +people of so many parishes or counties, out of the whole number._ + +It is impossible, without deranging our system of election, either to +reject votes actually cast, out of consideration for the motives with +which they were cast, or to add to them the supposed votes which might +have been cast. The ballot itself is a standing protest against +inquiry into motives. It enjoins and protects the secret of the hand; +much more should it enjoin and protect the secret of the heart. And as +for adding votes, on the supposition that they might or would have +been cast but for untoward circumstances, no plausible reason can be +given for it which would not apply to any case of disappointment in +the fullness of the vote. A rainy day of election costs one of the +parties thousands of ballots. If it happen to rain on that day, why +not order a new election in better weather; or, to save that +formality, make an estimate of the number who would have attended +under a cloudless sky, and add their ballots to one side or the other? +The rejection of the votes of a parish can be justified, if +justifiable at all, only on the ground that the votes cast do not give +the voice of the parish, either because they did not express the real +wishes of the voters, or because they would have been overborne by +other votes if they could have been cast. + +Does not the foregoing reasoning lead to this conclusion, that whether +the charges of intimidation in certain counties or parishes of a State +be founded in fact or in error, they do not warrant the rejection of +the votes actually cast in those counties or parishes; and, +furthermore, that they who insist upon such rejection must accept, as +a logical conclusion, the rejection, for a like reason, of the votes +of the whole State? I submit that such are the inevitable conclusions. + +It is insisted, however, that this is an inquiry which cannot be gone +into in the present state of the canvass. Certificates have been sent +to Washington, purporting to give the result of the election. The +question will probably arise, at the meeting of the two Houses, in +this manner: Two certificates are required, one signed by the +electors, pursuant to the Constitution, certifying their own votes; +and the other signed by or under the direction of the Governor of the +State, pursuant to act of Congress, certifying the appointment of the +electors. Both certificates are sent to the President of the Senate, +in one envelope. It may indeed happen that two envelopes come from the +same State, each containing two certificates of rival governors, and +rival electors. If there is but one envelope, one of the certificates +which should be there may be omitted, or may be imperfect. In all +these cases, it is manifestly incumbent upon the two Houses to receive +or reject, in the exercise of their judgment. But if one envelope +only is presented, containing the two certificates, both in due form, +and objection is nevertheless made that the certificate of the +appointment 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 such +as they please. But is not that a _non sequitur_? The States may +appoint whom they please, in such manner as their Legislatures have +directed, but an appointment and a certificate are different things. +The latter is, at the very best, only evidence of the former. The fact +to be determined is the appointment; the certificate is produced as +evidence; it may be controvertible or incontrovertible, as the law may +have provided, but there is nothing in the nature of a certificate +which forbids inquiry into its verity; it is not a revelation from +above; it is a paper made by men, fallible always, and sometimes +dishonest as well as fallible; and, if honest, often deceived. It is +made generally in secret and _ex parte_, without hearing both sides, +without oral testimony, without cross-examination. Of such evidence it +may be safely affirmed, that it is never made final and conclusive +without positive law to that express effect. + +Now, it may be competent for the Legislature of a State, under its own +constitution, to determine how far one of its own records shall be +conclusive between its own citizens. It may enact, that the +certificate of a judge of a court of record, of a sheriff, a county +commissioner, a board of tax assessors, or aboard of State canvassers, +shall or shall not be open to investigation. There is, however, no act +of Congress on the subject of the present inquiry, and we are left to +the Constitution itself, with such guides to its true interpretation +as are furnished by just analogy and by history. If it can be shown +that the certificate was corruptly made, by the perpetration of gross +frauds in tampering with the returns, must it nevertheless flaunt its +falsehood in the faces of us all, without the possibility of +contradiction? A President is to be declared elected for thirty-eight +States and forty-two millions of people; the declaration depends upon +the voice, we will suppose, of a single State; that voice is uttered +by her votes; to learn what those votes are, we are referred to a +certificate, and told that we cannot go behind it. In such case, to +assert that the remaining thirty-seven States are powerless to inquire +into the getting up of this certificate, on the demand of those who +offer to prove the fraud of the whole process, is to assert that we +are the slaves of fraud, and cannot take our necks from the yoke. I do +not believe that such is the law of this land, and I give these +reasons for my belief. + +In the absence of express enactments to the contrary, any judge may +inquire into any fact necessary to his judgment. The point to be +adjudged and declared in the present case is, who has received a +majority of the electoral votes, that is, of valid electoral votes, +not who has received a majority of certificates. A President is to be +elected, not by a preponderance of certification, but by a +preponderance of voting. The certificate is not the fact to be proved, +but evidence of the fact, and one kind of evidence may be overcome by +other and stronger evidence, unless some positive law declares that +the 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 made +unanswerable; that is, though it might be truthfully answered, the law +will not allow it to be answered. Such cases are exceptional, and the +burden of establishing them rests upon him who propounds them. Let +him, therefore, who asserts that the certificate of a returning board +cannot be answered by any number of living witnesses to the contrary, +show that positive law which makes it thus unanswerable. There is +certainly nothing in the Constitution of the United States which makes +it so, as there is no act of Congress to that effect. + +A certificate of a board of returning officers has nothing to liken it +to a judicial record of contentions between parties. The proceeding is +_ex parte_; or, if there be parties, the other States of the Union are +not represented, however much their rights may be affected; the +evidence is in part at least by one-sided affidavits; the judges may +be interested and partial. What such a board has about it to inspire +confidence or command respect, it is hard to perceive. If there be any +presumption in its favor, or in favor of the justice of its +judgments, the presumption is as far from indisputable as a disputable +presumption can ever be. + +To recapitulate, we may formulate the question in this manner: _Whom +has the State appointed to vote in its behalf for President?_ The +manner of appointment is the vote of the people, for the Legislature +has so directed. Who, then, are appointed by the people? To state the +question is nearly equivalent to stating what evidence is admissible; +for the question is not, who received the certificate, but who +received the votes; and any evidence showing what votes were cast and +for whom is pertinent and must therefore be admissible, unless +excluded by positive law. The law by which this question is to be +decided is not State, but Federal. If it were otherwise, the State +officers might evade the Constitution altogether, for this ordains +that the appointment shall be by the State, and in such manner as its +Legislature directs; but if the State certificate is conclusive of the +fact, the State authorities may altogether refuse obedience to the +constitution and laws, and save themselves from the consequences by +certifying that they have obeyed them. And they may in like manner +defraud us of our rights, making resistance impossible, by certifying +that they have not defrauded. Indeed, they might make shorter work of +it, and _omit the election altogether, writing the certificate in its +stead_. + +If the Governor of Massachusetts were to certify the election of the +Tilden electors, and their votes were to be sent to Washington, +instead of those which the Hayes electors have just given in the face +of the world, must the Tilden votes be counted? Must this nation bow +down before a falsehood? To ask the question is to answer it. There is +no law to require it; there can be none until American citizens become +slaves. The nature of the question to be determined, the absence of +any positive law to shut out pertinent evidence, the impolicy of such +an exclusion, its injustice, and the impossibility of maintaining it, +if by any fatality it were for a time established--all these +considerations go to make and fortify the position, that whatever body +has authority to decide how a State has voted, has authority to draw +information from all the sources of knowledge. The superstitious +veneration of a certificate, which would implicitly believe it, and +shut the eye to other evidence, is as revolting as that of the poor +negro in the swamps of Congo, who bows down before his fetich. The +idolaters, mentioned in Scripture, who took a tree out of the wood, +burned one part of it, hewed the other, and then worshiped it, were +only prototypes of the men of our day, who bow down before a piece of +paper, signed in secret fourteen hundred miles away, asserting as true +what they know or believe to be false. + +It were useless, therefore, to inquire how far the laws of a State +make the certificate of a board of canvassers or of returns conclusive +evidence of the result of an election held in the State. It maybe +admitted that the Supreme Court of Louisiana, for example, has denied +its own competency to go behind the certificate of the board; but even +that decision is entitled to no respect, being made in contravention +of an express provision of the State statute, as the dissenting +opinion of one of the judges clearly shows. Every other State of the +Union, save perhaps one, has decided that the certificate is +impeachable, even in a case where the statute declares that the +canvassers shall "determine what persons have been elected." The +opinion of the Supreme Court of Wisconsin, an extract from which is +given in the Appendix, states and decides the point with clearness and +unanswerable force. + +If what has been said be founded in sound reason, the two Houses of +Congress, when inquiring what votes are to be counted, have the right +to go behind the certificate of any officers of a State, to ascertain +who have and who have not been appointed electors. The evidence which +these Houses will receive upon such inquiry it is for them and them +only to prescribe, in the performance of their highest functions and +the exercise of their sincerest judgment. + + +THE REMEDY FOR A WRONG COUNT + +is the remaining question. Hitherto, I have endeavored to state in a +popular manner the existing law, as I understand it. I will now ask a +consideration of the needs of future legislation. If there be anything +obscure in the present law, Congress has the power to make it clear; +if there be danger in our present condition, Congress can remove the +danger. There are various ways of doing it. + +One is to provide for a judicial committee of the two Houses, to sit +in judgment, as if they were judges, and pronounce upon the result of +the evidence. The English House of Commons used to reject or admit +members, from considerations of party. Englishmen have thought that +they had at last succeeded in establishing a tribunal which would +decide with impartiality and justice. We should be able to devise +means equally sure of arriving at a result just in itself, and +satisfactory to all. The considerations in favor of a judicial +committee of the two Houses are cogent, though they may not be +conclusive. They are, the necessity of a speedy decision, and the +desirableness of keeping, if possible, the ordinary courts out of +contact with questions of the greatest political significance. + +But if it be found impossible to agree upon the formation of such a +committee, then a resort to the courts should certainly be had. The +public conscience must be satisfied that the person sitting in our +highest seat of magistracy is there by a just title; and it can be +satisfied of that, in doubtful cases, only by a judicial inquiry. + +An act of Congress might provide either for the case of a double +declaration of the votes, one by each House of Congress, or of a +single declaration by the two Houses acting in concert. In either case +the Supreme Court could be reached only by appeal, and the court of +first instance might be either the Supreme Court of the District of +Columbia or any of the Circuit Courts. The Court of the District +should seem to be the most convenient, the most speedy, and the most +appropriate, 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 person +elected and the House another, an information should be immediately +filed in the Supreme Court of the District, in the name of United +States, against both the persons thus designated, alleging the fact, +and calling upon each to sustain his title. The difficulty of this +process would be how to expedite the proceedings so that a decision +should be had before the 4th of March, in order to avoid an +interregnum. But I think this difficulty could be overcome. To this +end, the time of the courts engaged in the case should be set apart +for it. The rival claimants would naturally be in Washington, prepared +for the investigation. The evidence previously taken by the two +Houses--for they would assuredly have taken it--could be used, with +the proper guards against hearsay testimony, and any additional +evidence necessary would probably be ready, if the claimants or their +friends knew beforehand that a trial was likely to be had. It might +indeed happen that the questions to be decided would involve little +dispute about facts; as, for example, the present Oregon case. It +should be provided that the trial must be concluded and judgment +pronounced within a certain number of days, either party being at +liberty to appeal, within twenty-four hours after the judgment, to the +Supreme Court of the United States, by which the appeal should be +heard 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 in +the names of the United States and the claimant, against the +incumbent, and proceedings carried on in the ordinary manner of +proceedings in the nature of _quo warranto_. + +Any lawyer could readily frame a bill to embrace these several +provisions. An amendment of the Constitution would not be necessary. +The provisions would operate as a check upon fraud. They would furnish +a more certain means of establishing the right. The objection that the +courts would thus be brought into connection with politics is the only +objection. But the questions which they would be called upon to +decide, would be questions of law and fact, judicial in their +character, and kindred to those which the courts are every day called +upon to adjudge. The greatness of the station is only a greater reason +for judicial investigation. The dignity of the presidential office is +not accepted as a reason why the incumbent should not be impeached and +tried. It can be no more a reason why a usurper should not be ousted +and a rightful claimant admitted. The President is undoubtedly higher +in dignity and greater in power than the Governor of a State, but the +reasons why the title of a Governor should be subjected to judicial +scrutiny are of the same kind as those which go to show that the title +of a President of the United States should be subjected, upon +occasion, to a like scrutiny. The process was tried and found useful +in the Capitol of Wisconsin, and, for similar reasons, it may be tried +and found useful in the Capitol of the Union. So far from degrading +the office, or offending the people to whom the office belongs, it can +but help to make fraud less defiant and right more safe, and add a new +crown to the majesty of law. That triumph of peace and justice in +Wisconsin has, to the eye of reason, given an added glory to her +prairies and hills, and a brighter light to the waters of her shining +lakes. + + + + +APPENDIX. + +_Observations of the Chief Justice Whiton, of Wisconsin, respecting +the 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. THREE DOLLARS PER ANNUM._ + +APPLETONS' JOURNAL is now published monthly; it is devoted to popular +literature and all matters of taste and general culture--published at +a price to bring it within the reach of all classes. 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APPLETON & CO., PUBLISHERS, + 549 & 551 Broadway, New York. + + + + +THE PRESIDENTIAL COUNTS: + + A COMPLETE OFFICIAL RECORD + + _OF THE PROCEEDINGS OF CONGRESS AT THE COUNTING + OF THE ELECTORAL VOTES IN ALL THE ELECTIONS + OF PRESIDENT AND VICE-PRESIDENT OF THE + UNITED STATES; TOGETHER WITH ALL + CONGRESSIONAL LEGISLATION + INCIDENT THERETO, OR TO + PROPOSED LEGISLATION + UPON THAT SUBJECT._ + +WITH AN ANALYTICAL INTRODUCTION. + +One large 8vo Volume, 750 Pages, Paper Covers, Price, $3. + +The decision of the aggregate votes cast for a President is the +greatest and most important act relating to every such election. How +shall it be done? How shall the result be peacefully and justly +decided? How shall the votes be counted? Upon the satisfactory +solution of this question hangs the existence of the Government. In +these pages the reader will find all that has been proposed or said in +Congress on the subject, together with the entire official action of +Congress in counting the votes at every previous presidential +election. + +All the congressional debates on this subject are printed verbatim +from the reports in "The Annals of Congress," "Congressional Globe," +and "Congressional Record," and in every case the pages of the +original work are given. + + D. APPLETON & CO., PUBLISHERS, + _549 & 551 Broadway, New York._ + + + + + * * * * * + + + + +Transcriber's Notes: + +1. One page of advertisements located at the beginning of the book has + been moved to the end of the book. + +2. 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