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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/30231-0.txt b/30231-0.txt new file mode 100644 index 0000000..a225041 --- /dev/null +++ b/30231-0.txt @@ -0,0 +1,842 @@ +*** START OF THE PROJECT GUTENBERG EBOOK 30231 *** + + THE VOTE + THAT + MADE THE PRESIDENT. + + BY + DAVID DUDLEY FIELD. + + NEW YORK: + D. APPLETON & COMPANY, + 549 & 551 BROADWAY. + 1877. + + + + +COPYRIGHT BY DAVID DUDLEY FIELD. 1877. + + + + +THE VOTE THAT MADE THE PRESIDENT. + + +At ten minutes past four o'clock on the second morning of the present +month (March, 1877), the President of the Senate of the United States, +in the presence of the two Houses of Congress, made this announcement: +"The whole number of the electors appointed to vote for President and +Vice-President of the United States is 369, of which a majority is 185. +The state of the vote for President of the United States, as delivered +by the tellers, and as determined under the act of Congress, approved +January 29, 1877, on this subject, is: for Rutherford B. Hayes, of Ohio, +185 votes; for Samuel J. Tilden, of New York, 184 votes;" and then, +after mentioning the votes for Vice-President, he proceeded: "Wherefore +I do declare, that Rutherford B. Hayes, of Ohio, having received a +majority of the whole number of electoral votes, is duly elected +President of the United States for four years, commencing on the fourth +day of March, 1877." + +Mr. Hayes was thus declared elected by a majority of one. If any vote +counted for him had been counted on the other side, Mr. Tilden, instead +of Mr. Hayes, would have had the 185 votes; if it had been rejected +altogether, each would have had 184 votes, and the House of +Representatives would immediately have elected Mr. Tilden. One vote, +therefore, put Mr. Hayes into the presidential office. + +To make up the 185 votes counted for him, 8 came from Louisiana and 4 +from Florida. Whether they should have been thus counted is a question +that affects the honor, the conscience, and the interests of the +American people. There is not a person living in this country who has +not a direct concern in a just answer. Not one will ever live in it +whose respect for this generation will not depend in some degree upon +that answer. + +The 12 votes were not all alike. Some had one distinction, some another. +But, not to distract attention by the discussion of several transactions +instead of one, and because one in the present instance actually +determined the result, I will confine my observations to a single vote. +For this purpose let us take one of the votes from Louisiana, that, for +instance, of Orlando H. Brewster. + +Brewster was not appointed an elector, inasmuch as he did not receive a +majority of the votes cast by the people of Louisiana, and inasmuch also +as he could not have been appointed if he had received them all. + + +HE DID NOT RECEIVE A MAJORITY OF THE VOTES. + +It would be a waste of time and patience to go through the testimony +taken by the two Houses of Congress for their own information, before +they consented to call in the advice of the Electoral Commission. The +evidence of wrongs on both sides, and the irreconcilable contradictions +of witnesses, made President Seelye and Mr. Pierce, of Massachusetts, +declare it to be impossible for them to reach a satisfactory conclusion +upon the facts, and compelled them to break away from their party, and +refuse to abide by the advice of the Commission. There are certain +things, however, which we know beyond dispute, or about which there is +and can be no controversy, and these only will I mention. We know that +the number of votes cast in Louisiana for the Tilden electors, taking +the first name on the list as representing all, was 83,723, but that the +certificate of the Returning Board put them at 70,508, turning Mr. +Tilden's majority of more than 6,000 into a majority for Mr. Hayes; and +we know that the reduction was made by throwing out more than 13,000 +votes of legal voters voting legally for Mr. Tilden, and that more than +10,000 of these were thrown out upon the assumed authority of a statute +of Louisiana, which in terms gave the board power to throw out votes, +upon examination and deliberation, "whenever, from any poll or +voting-place, there shall be received the _statement of any supervisor_ +of registration _or commissioner_ of election, in form as required by +section 26 of this act, _on affidavit of three or more citizens_, of any +riot, tumult, acts of violence, intimidation, armed disturbance, +bribery, or corrupt influences, which prevented, or tended to prevent, a +fair, free, and peaceable vote of all qualified electors entitled to +vote at such poll or voting-place." + +Whether the statute itself has its warrant in the Constitution is a +question not necessary now to be considered. For my part, I cannot see +the authority for taking out of the ballot-boxes the ballots of lawful +voters and throwing them away because other voters did not vote, +whatever may have been the cause of their not voting, whether they were +frightened, foolish, or perverse. I cannot for the life of me perceive +that the State can be held to have elected persons whom it did not in +fact elect, because it is conjectured, or even made probable, that if +voters who kept away from the polls had in fact attended and voted, they +would have made a majority for these persons. + +Without going into that question, however, and assuming for the sake of +the argument that the statute had all the authority of the most clearly +valid statute that was ever passed, it is certain that the only ground +upon which a vote could have been thrown out, for intimidation or other +corrupt influence, was the statement of a supervisor of registration or +commissioner of election, founded upon the affidavits of three citizens. +When, however, the vote of Louisiana was before the Electoral +Commission, the following offer was made by counsel: + + "We offer to prove that _the statements and affidavits_ purporting + to have been made and forwarded to said Returning Board in + pursuance of the provisions of section 26, of the election law of + 1872, alleging riot, tumult, intimidation, and violence, at or near + certain polls, and in certain parishes, _were_ falsely fabricated + and _forged_ by certain disreputable persons _under the direction_, + and with the knowledge, _of said Returning Board_, and that said + Returning Board, knowing said statements and affidavits to be false + and forged, and that none of the said statements or affidavits were + made in the manner or form or within the time required by law, did + knowingly, willfully, and fraudulently, fail and refuse to canvass + or compile more than 10,000 votes lawfully cast, as is shown by the + statements of votes of the Commissioners of Election." + +This offer the Commission rejected by a vote of 8 to 7. + +In the Commission Mr. Abbott moved the following: + + "_Resolved_, That testimony tending to show that the so-called + Returning Board of Louisiana had no jurisdiction to canvass the + votes for electors of President and Vice-President is admissible." + +This was rejected by the same vote. + +In explaining the reason of their decision in the case, the Commission +used the following language: + + "And the Commission has, by a majority of votes, decided, and does + hereby decide, that it is not competent, under the Constitution and + the law as it existed at the date of the passage of said act, to go + into evidence _aliunde_, the papers opened by the President of the + Senate, in the presence of the two Houses, to prove that other + persons than those regularly certified to by the Governor of the + State of Louisiana, on and according to the determination and + declaration of their appointment by the returning officers for + elections in the said State prior to the time required for the + performance of their duties, had been appointed electors, or by + counter-proof to show that they had not; or that the determination + of the said returning officers was not in accordance with the truth + and the fact, the Commission, by a majority of votes, being of + opinion that it is not within the jurisdiction of the two Houses of + Congress, assembled to count the votes for President and + Vice-President, to enter upon a trial of such questions." + +Whether, therefore, the decisions of the Commission or the reasons given +for them be sound or unsound, it may be assumed, that _Brewster did not +receive a majority of the votes cast by the people of Louisiana, and +that the action of the Returning Board_ in cutting down the majority of +his competitor, so as to reduce it below his, _was taken without +jurisdiction, and upon the pretense of statements and affidavits which +they themselves had caused to be forged_. + + +BREWSTER COULD NOT HAVE BEEN APPOINTED ELECTOR IF HE HAD RECEIVED THE +VOTES OF ALL THE PEOPLE OF LOUISIANA. + +He had been made Surveyor-General of the United States, for the District +of Louisiana, on the 2d of February, 1874; was recommissioned by +President Grant on the 11th of February, 1875, and is at present +exercising the office. Whether he has ever been out of the office +depends upon the facts now to be mentioned. Eight or nine days after the +election of November 7, 1876, at which he was a candidate on the +Republican electoral ticket, there was received at the Department of the +Interior, from the hands of the President, this letter: + + MONROE, _November 4, 1876_. + + DEAR SIR: I hereby tender my resignation of the office of + Surveyor-General of the State of Louisiana, with the request that + it be accepted immediately. With many thanks for your kindness, + + I remain, yours respectfully, + O. H. BREWSTER. + + U. S. GRANT, _President United States_. + +When the letter was written does not appear. It is certain that Brewster +was acting as Surveyor-General on the 10th of November. + +On the 16th of November a letter was addressed to the Commissioner of +the General Land-Office, as follows: + + DEPARTMENT OF THE INTERIOR,} + WASHINGTON, _November 16, 1876_.} + + SIR: I have received the resignation of Mr. Orlando H. Brewster, + Surveyor-General of Louisiana, which he has requested may take + effect immediately. Please inform Mr. Brewster that his resignation + has been accepted by the President, to take effect November 4th + instant, that being the date of his letter of resignation to this + Department. + + Very respectfully, + Z. CHANDLER, _Secretary_. + +At what time, if ever, the Commissioner informed Brewster of the +acceptance of his resignation we do not know, but it could not have been +earlier than the 20th of November. + +On the morning of the 6th of December, the four men who assumed to act +as the Returning Board of Louisiana filed in the office of the +Secretary of that State a certificate that Brewster, with seven other +persons, had been appointed presidential electors. There was then on the +statute-book of Louisiana this enactment: + + "If any one or more of the electors chosen by the people shall fail + from any cause whatever to attend at the appointed place at the + hour of 4 P.M. of the day prescribed for their meeting, it shall be + the duty of the other electors immediately to proceed by ballot to + fill such vacancy or vacancies." + +What Brewster did is thus told by Kellogg, one of the Hayes electors, on +his examination at Washington in January: + + "_Q._ Did Levissee and Brewster vote at the meeting of electors? + + _A._ I believe they did. + + _Q._ Was not an appointment made for somebody to fill Brewster's + place? + + _A._ I believe that that is the case. + + + _Q._ Who was appointed to fill Brewster's place? + + _A._ Brewster himself. + + _Q._ The same man? + + _A._ The same man. + + + _Q._ Were you also instructed by these committees (National and + Congressional Republican Committees) how to dispose of Brewster + and Levissee? + + _A._ My recollection is that some one of the electors had + received a letter suggesting that in case of a vacancy or in case + of the absence of Levissee and Brewster, they should be chosen in + their own places. That is my recollection. + + + _Q._ And yet they absented themselves from the electoral college, + and you filled their vacancies with themselves? + + _A._ They were absent from the college when the college met, and we + filled their vacancies by themselves." + +Being thus installed, they voted for Mr. Hayes within an hour after they +were chosen to fill their own vacancies; and three days afterward +Brewster addressed the following letter to the President: + + NEW ORLEANS, LOUISIANA, _December 9, 1876._ + + SIR: I respectfully apply to be appointed Surveyor-General for the + District of Louisiana. Commendations from prominent gentlemen will + be submitted to your Excellency to justify the appointment. + + I have the honor to remain + Your very obedient servant, + ORLANDO H. BREWSTER. + + U. S. GRANT, _President United States, Washington, D. C._ + +The reappointment was made on the 5th of January, 1877. The Chief of the +Appointment Division in the Interior Department was asked and testified +about it as follows: + + "_Q._ Who recommended his appointment in January? + + _A._ I think the probability is (although there is no evidence of + it) that there was no recommendation, further than his own + application to the President. + + _Q._ You do not know of any recommendation? + + _A._ I do not know of any. + + _Q._ There is none on file? + + _A._ There is none on file to the best of my knowledge. There is + none on file in the Interior Department." + +Who does not perceive the shallow trick by which Brewster pretended to +have divested himself of his Federal office that he might vote; only to +be reinvested as soon as he had voted? + +The letter of resignation, with its false date, and its pretended +acceptance, to take effect as of a time past, were evident shams to make +it appear that he was not holder of a Federal office when he was +elected; his affecting to be absent on the 6th of December, and coming +in immediately to fill the vacancy occasioned by his own absence, in +order to make it appear that his appointment was made on that 6th of +December, instead of the 7th of November, and his barefaced application +on the third day thereafter to be reappointed to the Federal office, +from which he could not possibly have perfected his resignation before +the 20th of November--all these were but so many contrivances to evade +the highest enactment known to our civil polity. In the eye of reason +and of law, he acted during the whole period under that influence of +office which it was the design of the Constitution to prevent, and he +must have entered more thoroughly into the work of his Federal master +than if he had not gone through the form of resigning, inasmuch as that +placed him, more than before, in his master's power. + +Let us now place side by side the commandment of the Constitution and +the resolution of the Electoral Commission: + + COMMANDMENT. | RESOLUTION. + | + "_No_ Senator or Representative, | "The Commission, by a majority + or _person holding an office of | of votes, is also of the opinion + trust or profit under the United | that _it is not competent to prove + States, shall be appointed an | that any of said persons, so + elector._" | appointed electors_ as aforesaid, + | _held an office of trust or + | profit under the United States + | at the time when they were + | appointed_, or that they were + | ineligible under the laws of the + | State, or any other matter + | offered to be proved _aliunde_ + | the said certificates and + | papers." + +It would be unjust to cast upon the Electoral Commission the blame of +all the wrong that has been practised in this presidential count. The +Commission was but a council of advice, which Congress might have taken +or not, as it pleased, the only condition being that, in order to reject +it, both Houses must have agreed. The responsibility of the final +decision lay, after all, upon Congress, or rather, upon the Senate, +which voted throughout to follow the Commission. + + * * * * * + +The facts thus briefly recited present certain questions--moral, +political, and legal--which cannot be considered too soon for our good +repute and our self-respect. + + +THE MORAL QUESTION. + +Whatever differences of opinion there may be about the political and +legal questions involved, there can be none about the moral. The +presidential office is the gift of the people of the several States, of +their own free-will, expressed according to the laws. A falsification of +that will is an offense against the State where it is committed, and +against all the States. If the falsification is beyond the reach of the +law, it is not beyond the reach of the conscience. A robbery is none the +less a robbery because it is beyond the range of vision or the arm of +justice. If the possessor of an estate has entered through the forgery +of a record or the spoliation of a will, which although believed by +every neighbor is beyond judicial proof, all the world pronounces his +possession fraudulent, even though he scatters his wealth in charities +and gathers many companions around his luxurious table. The example is +corrupting, but it is against the eternal law of justice that the act +should be respected or the actors continue forever to prosper. + +It is no answer to these observations to say that frauds have been +practised on the other side. Unhappily there is too much reason to +believe that neither party is free from practices which are at once a +scourge and a dishonor. Neither has the disgraceful monopoly of such +practices, whichever may have the bad preĆ«minence. But this is certain: +one wrong neither justifies nor palliates another. + +There is no set-off known to the moral law. Because A has defrauded B, +that is no reason why B should defraud A. If it were so, society would +go on forever in a compound ratio of crime. The first breach of the law +would furnish excuse for the second, and their progeny would follow in +sad progression to the end of time. This is not, however, the moral +condition of the world. The _lex talionis_ has been abolished by the law +of civilization and the higher law of the gospel. + +In this case of Louisiana there can be neither excuse nor palliation for +the misconduct of the Returning Board. + +On the 10th of November, President Grant telegraphed to the General of +the Army instructions about troops in Louisiana and Florida, and added +that "_no man worthy of the office of President should be willing to +hold it if counted in or placed there by fraud_. Either party can afford +to be disappointed in the result. _The country cannot afford to have the +result tainted by the suspicion of illegal or false returns._" And +again: "The presence of citizens from other States, I understand, is +requested in Louisiana, to see that the Board of Canvassers makes _a +fair count of the vote actually cast_. It is to be hoped that +representative and fair men of both parties will go." + +Did the President of that day misrepresent his party, or his successor, +or has the party changed and the successor also? Had the virtuous +impulses of November faded away in February? Was there a change of heart +or a change of opportunity? Neither Congress nor the Electoral +Commission could give an _honest_ title, without investigating the +honesty of the transactions on which the title was founded; and yet a +President has been installed, in the face of rejected offers to prove +frauds, the grossest, the most shameless, and the most corrupting, in +all our history. + +Then what was the object of the committees of each House of Congress, +sent into the disputed States? Was it to blind the people? Was it to +conceal a meditated fraud? On the very first day of the session, +December 4th, Mr. Edmunds, in the Senate, moved certain resolutions, of +which this was one: + + "_Resolved further_, That the said committee" (the Committee on + Privileges and Elections) "be, and is hereby, instructed to inquire + into the eligibility to office under the Constitution of the United + States of any persons alleged to have been ineligible on the 7th + day of November last, or to be ineligible as electors of President + and Vice-President of the United States, to whom certificates of + election have been, or shall be, issued by the Executive authority + of any State, as such electors, and _whether the appointment of + electors_, or those claiming to be such, in any of the States, _has + been made either by force, fraud, or other means otherwise than in + conformity with the Constitution and laws of the United States, and + the laws of the respective States_; and whether any such + appointment or action of any such elector has been in any wise + unconstitutionally or unlawfully interfered with; and to inquire + and report whether Congress has any constitutional power, and, if + so, what and the extent thereof, in respect of the appointment of + or action of electors of President and Vice-President of the United + States, or over returns or certificates of votes of such electors," + etc. + +Was all this parade of committees sent hither and thither, summoning +witnesses from far and near, committing the recusant to prison, and +looking into State archives; was all this a mock show, a piece of +pantomime, for the amusement of the lookers-on, while conspirators were +plotting how to conceal what they pretended to be wishing to discover? +Taken all in all, the sounding profession, the bustling search, and the +studied concealment, make a drama, half comedy and half tragedy, the +like of which this generation has not seen till now, but the like of +which it and its successors may see many times, if the audience does not +hiss the play, and remit the actors to the streets. + +It has been objected, as a reason for not receiving offered evidence, +that there was not time to take it before the 4th of March. How was that +known? Perhaps it could have been taken in an hour. Why was not the +question asked, how much time the evidence would take, before it was +excluded? If the certificate was false, and the falsehood was +susceptible of proof, every effort possible should have been made to +receive it, and receive it all. It is not commonly accepted as good +reason for not searching after the truth, that the search may be +difficult. Nor is it an unusual occurrence to require an argument or +decision to be made within a period limited. Ten minutes' speeches in +Congress, two hours' argument in the Supreme Court, a jury shut in a +room until they agree upon a verdict, a court required by statute to +render its decision by a day fixed, are not so strange as to be +remarkable, or found in practice so embarrassing as to cause the +practice to be abandoned. + +Nor is it any answer to say that, if the offer of evidence had been +accepted, the proof would have fallen short of the offer. That does not +lie in the mouth of any one to say, who excluded the evidence, or +justified its exclusion. The characters of the counsel who made the +offer, and of the commissioner who moved its acceptance, are a guarantee +not only of their good faith, but of a reason for their belief. No man +has any right to deny that the proof offered would have been made good, +who refused the opportunity. They who closed their ears should in +decency keep their mouths shut. But it was not the counsel and the +commissioner alone who believed that the proof offered would be made +good. Every one who witnessed the examinations in Washington, every one +who read the testimony taken by the Congressional Committees in +Louisiana, must have been satisfied that the conduct of the Returning +Board was throughout unlawful, wicked, and shocking, to the last degree. + +The title of the acting President, however valid in law, if valid at +all, is tainted with fraud in fact. There was fraud in certifying that +Brewster had received a majority of the votes of Louisiana, and fraud in +attempting to evade that part of the Constitution which pronounced his +disqualification. When the Electoral Commission advised Congress, and +Congress accepted, by not rejecting, the advice, that fraud could not be +proved, that advice being but the equivalent of saying that fraud was of +no consequence; when it advised that the incompetency of the Returning +Board, for want of jurisdiction, could not be proved, such proof being +but the equivalent of proof that the pretended board was not a board at +all; when it advised that the forgery, by direction of the board, of the +statements and affidavits on which it pretended to act as true could not +be proved, that proof being but the equivalent of proof that the +pretended statements and affidavits were not statements and affidavits +at all; when it advised that the barrier raised by the Constitution +against the appointment of a Federal officer to choose a Federal +President, was not a barrier at all--the moral sense of the whole +American people was shocked. No form of words can cover up the +falsehood; no sophistry can hide it; no lapse of time wash it out. It +will follow its contrivers wherever they go, confront them whenever they +turn, and as often as one of them asks the suffrages of his countrymen, +he may expect to hear them reply, "Why do you reason with us, why seek +to persuade us into giving you our votes, you that have taught us such a +contempt for votes, that one fraudulent certificate is better than ten +thousand of them?" + + +THE POLITICAL QUESTION. + +The advice of the Commission, with the consequent action of Congress, +was a virtual affirmation of this proposition, that if on the morning of +the 6th of December the Federal general commanding in Louisiana had +surrounded the State-House with soldiers, and marching in eight of his +captains, had compelled the Returning Board to certify their +appointment as electors, and the Governor to add his certificate, +Congress and the country would have been obliged to accept the votes of +these captains as the constitutional and lawful votes of Louisiana +electors. Whoever supposes that the union of these States can endure +under such an interpretation of their fundamental law, must be endowed +with credulity beyond the simplicity of childhood. The doctrine is an +open invitation to transgression and usurpation. The judicious +disposition of a few troops in the capitals of disputed States, on the +day of the electoral vote, will perpetuate an Administration just so +long as the audacity of a President, or the cupidity of his +office-holders, may find it desirable; unless, indeed, it be found, as +is most likely, that the ways of fraud are cheaper, easier, and less +palpable than the ways of force. + + +THE LEGAL QUESTION. + +_As to the conclusiveness of the Governor's and canvassers' +certificates._ The doctrine of the majority of the Commission, and of +the Senate, is, that the certificate of the Governor "_on and according +to the determination and declaration_" of the State canvassers, cannot +be shown to be false, though it may have been obtained by force or +fraud. This doctrine admits that the truth of the _Governor's_ +certificate can be inquired into, else why the qualification that it +must be "_on and according to_" the canvasser's certificate. It is said +to be good only when in such accord; therefore, when not in accord, it +is good for nothing. We may, then, dismiss the Governor's certificate as +of no account, and to be left therefore out of further discussion. The +substance of the doctrine is, that the _certificate of the State +canvassers_ cannot be contradicted. + +This language must, of course, be understood, as used in reference to +the question at that time depending; that is to say, whether evidence to +contradict or annul the certificate was then and there admissible. It +had already been decided in the Florida case that no action of the State +authorities, after the electors had voted, could affect the validity of +the vote. Whether such action before the vote would have been of any +avail was not decided, and will never be decided, unless a radical +change is made in the laws, since, according to present legislation, the +vote of the electors treads fast on the heels of their appointment. In +Florida, they were declared appointed at three o'clock in the morning, +and they voted at twelve, just nine hours afterward. In Louisiana the +interval was even less. To suppose that any State action would or could +be had in such an interval, or in any interval possible under present +laws, would be as wild as to suppose that counting in a President by +fraud will not be followed by imitators at future elections. + +Taking the doctrine, however, precisely as it was applied in the +instance of Louisiana, it is this: that the certificate of State +canvassers cannot be impeached by evidence showing either that they had +no jurisdiction to canvass the electoral vote at all, or that they had +no jurisdiction to throw away votes that were actually cast, inasmuch as +the power to throw away came into existence only when affidavits were +laid before them, and there were no affidavits except such as they had +caused to be forged, which, in the eye of the law, were not affidavits +at all. + +One would say that such a doctrine, held up in its nakedness, need +hardly be attacked, for no man, not maddened by the fanaticism of party, +would be found willing to defend it; yet if not defended, the +disposition of the Louisiana case must be pronounced as unsound in law +as it was injurious in policy and offensive in morals. But I go further, +and deny the conclusiveness of the canvassers' certificate under any +circumstances. Suppose the question to be put thus: Can the certificate +of State canvassers, acting within the scope of their authority, be +questioned by evidence of mistake, fraud, or duress; what should be the +answer? Most certainly it can, should be answered. + +The statutes of the State may or may not have declared the effect of the +certificate. In the case of Louisiana, this was the only statute +relevant: + + "The returns of the elections thus made and promulgated shall be + _prima-facie_ evidence in all courts of justice and before all + civil officers, until set aside after a contest according to law, + of the right of any person named therein to hold and exercise the + office to which he shall by such return be declared elected." + +Whatever doubt may have been expressed or felt whether this statute +applied to the canvassers of a presidential election, or whether the +words _prima facie_ really meant _prima facie_, or whether "courts of +justice," and "civil officers," included the Electoral Commission and +the two Houses of Congress, there can be no doubt that "the returns of +the elections thus made and promulgated" do not include returns +canvassed without jurisdiction, or made under cover of pretended +affidavits which the returning officers themselves caused to be forged. + +But, passing from this view of the subject, although this is sufficient +to dispose of Brewster's pretensions, let us suppose a stronger +case--the strongest supposable--that of a State Legislature directing +not only the manner in which electors shall be appointed, but directing +also that the certificate of the State canvassers shall be conclusive +evidence that the State has appointed in the manner directed. + +Because the Constitution provides that electors shall be appointed by +the State, in the manner directed by its Legislature, it is thence +inferred that the State must furnish the evidence of the appointment, +and of course that none can be received except that which the State has +furnished. And this is said to be the true States-rights doctrine. It is +a strange sight, that of gentlemen clamoring for State rights who will +not allow the people of Louisiana and South Carolina to take care of +themselves; who are even now debating at Washington whether they shall +not order new elections in those States, or which of two State +governments they shall put up and which put down, and who since the war +have treated the South as if no States were there, parceling it into +military districts, and denying recognition until constitutional +amendments were ratified. Their assertion of the conclusiveness of false +and fraudulent canvassers' certificates, on the pretense of upholding +State rights, should seem to be thrown in our faces by way of bravado, +unless it be meant, indeed, for burlesque masking hypocrisy. But if the +sight were not strange, and those gentlemen had been all along as +careful of the rights of the States as they are of their own places, +there is nothing in the claim for the conclusiveness of canvassers' +certificates which receives support from the doctrine of State rights. +On the contrary, the rights of the States are best preserved by fencing +them against force or fraud, by leaving them untrammeled in their own +action, and leaving us untrammeled in finding out what that action has +been. No rights are ever lost by letting in the light. + +A certificate can be conclusive evidence of the States' action, only +when the act and the certificate are identical. If the Constitution had +provided that there should be sent from each State a certificate signed +by such persons as the Legislature might designate, declaring who should +cast the electoral votes, then the only inquiry that could have been +made at Washington would have been, whether the certificate sent up was +so signed and the persons therein mentioned had voted; but the +Constitution has provided nothing of the kind. It has provided that the +State shall appoint in the manner directed by its Legislature, and the +inquiry thereupon to be made at the Capitol is, "Whom has the State +appointed in the manner directed?" + +We agree that the State has complete power, within certain limits +regarding the persons who may be appointed, to appoint its electors in +any manner its Legislature may direct, but whether the State has done so +is open to inquiry. Canvassers of votes are not the State, or the +Legislature of the State, and their certificate is nothing but evidence. +Two facts are to be shown: one that the State has acted, and the other +that the act has been in conformity to the directions of the +Legislature. There is nothing in positive law, or in the reason of +things, which, if the fact certified do not exist, requires that its +falsity should not be open to proof. + +The Electoral Commission and the Senate read the Constitution as if the +words following in italics were part of it: + + "Each State shall appoint, in such manner as the Legislature + thereof may direct, a number of electors equal to the whole number + of Senators and Representatives to which the State may be entitled + in the Congress; but no Senator or Representative, or person + holding an office of trust or profit under the United States, shall + be appointed an elector." _And the certificate of such officers as + the Legislature of the State may designate shall be conclusive + evidence, not only that the persons certified were appointed by the + State, but that they were appointed in the manner directed by its + Legislature, any mistake, fraud, or duress, of the certifying + officers to the contrary notwithstanding_. + +But the words of the Constitution as they stand do not carry with them +the words in italics, or their substance; and if it had been proposed to +add them when the Constitution was presented to the people, I do not +believe that they would have been accepted. + +Had it been suggested to the freemen of Massachusetts or Connecticut +that they should give to the Legislature of another State not only the +right of designating how the electors should be chosen, whose voices +might make a President for them, but also the right to designate a +permanent board, with power to say, in the face of the truth, who had or +had not been chosen, the voices of John Hancock and Oliver Ellsworth +would surely have warned the good people of their native Commonwealths +against so dangerous a proposition. + +There is no necessary connection between an appointment and the +certificate of it, unless the two acts are performed by the same +persons. If the appointment of electors for Louisiana had been committed +to the Returning Board, then there might be reason for saying that the +certificate was conclusive, because they appointed when they certified. +But the board had not the power of appointment. That power could not +have been given to them, if the Legislature of Louisiana had so +intended, and it did not so intend. + +The power to give a conclusive certificate of appointment--that is, a +certificate that precludes further inquiry--is virtually a power to +appoint, since no one is then permitted to go behind the certificate to +show that there was neither valid appointment nor form of appointment. +Unless, therefore, the Legislature of Louisiana could, under the +Constitution, confer upon the Returning Board power to appoint +presidential electors for Louisiana, it could not confer upon it power +to give a conclusive certificate of appointment. The constitution of +this Returning Board is known to us all. It was a permanent body, +holding for an undefined period, or for life, consisting of four +persons of one party, when there should have been five, of different +parties; and the four had persistently refused for years to select a +fifth. To pretend that such a body was, or could lawfully be, empowered +to appoint eight electors for the people of Louisiana, to match the +eight who were appointed by the people of Maryland, would be simple +effrontery; and most certainly, as I have said, if they could not +appoint, they could not give an incontrovertible certificate of +appointment. The certificate is one thing; the appointment another. The +State appoints and the Legislature directs the manner of appointment, +but neither can make true that which is false. + +_Now as to the person appointed._ Brewster was one of the very persons +sought to be excluded by these words of the Constitution: "No Senator or +Representative, or person holding an office of trust or profit under the +United States, shall be appointed an elector." He was, nevertheless, +appointed, and he voted, and his vote made the President. How was this +brought about? The Commission answer, "That it is not competent to prove +that any of said persons so appointed electors as aforesaid held an +office of trust or profit under the United States at the time when they +were appointed." Of course, if it was not competent to prove it, the +fact itself must have been of no importance. + +Bentham's "Book of Fallacies" may be enriched, in another edition, with +another fallacy, as remarkable as any he has recorded, to wit, that +prohibition in the American Constitution means prohibition! Talleyrand +was once asked the meaning of non-intervention. "Non-intervention," he +replied, "non-intervention means about the same thing as intervention." +So, in our new constitutional vocabulary, prohibition means about the +same thing as permission. + +It was, indeed, mentioned in the course of the argument, though the +Commission does not appear to have thought much of it, that Brewster, +having resigned his Federal office, and come in upon a new appointment, +to fill his own vacant place on the 6th of December, being then both +present and absent, the question of eligibility did not arise. But +enough has been said about this resignation sham. If such a trick had +been played in respect to a note-of-hand of five dollars, there is not a +justice of the peace who would not have denounced the trick, as +conferring no right and affording no protection. + +The people of New York were amused, three or four years ago, with the +feats of a juggler, who dressed one side of him as a man, and the other +as a woman, and who turned about so quickly that he showed himself as +two persons of different sexes in the same instant. Brewster's feat was +not less remarkable: he was at once absent and present; absent that he +might be appointed, and present that he might vote; went through the +whole performance in less than an hour, absenting himself that he might +be called in to be present, presenting himself though absent, voting +ballots and signing certificates, showing himself to be as versatile and +as agile as that master of jugglery. + +Upon what theory the Commission held that evidence could not be +received of Brewster's Federal office at the time of his appointment +does not appear. He certainly was in the prohibited category. A marriage +between persons within prohibited degrees is not good, even if +consummated. The prohibited union of two offices in the same person +should not be thought a legal union, simply because it is practised. It +has been said, though the Commission did not say it, that Brewster was +at least elector _deĀ facto_, and his vote was good, whatever may have +been his title. Then why should we trouble ourselves about the returning +officer's certificate? If, as elector _deĀ facto_, his vote was good, +then it was good without the certificate, and all that the Commission +should have looked into was the _fact of voting_, without troubling +themselves about the certificate of anybody or any other evidence of +title. But, in truth, the distinctions between officers _deĀ facto_ and +officers _deĀ jure_ have no application to the present case, and for this +reason, among others, that two persons cannot hold the same office _de +facto_. It is of the essence of a _deĀ facto_ possession of office that +it should be exclusive. The Chancellor of New York said, in a judicial +opinion, more than thirty years ago: "When there is but one office there +cannot be an officer _deĀ jure_ and an officer _deĀ facto_ both in +possession of the office at the same time." This is true even when the +office is a continuing one. Who, for instance, can say which of the +rival Governors in Louisiana or South Carolina at this moment is the +Governor _deĀ facto_? In deciding between them, would not all the world +pronounce this the only question, which is Governor _deĀ jure_? Much more +is it true when the office is temporary, existing but for a moment, even +if the doctrine of a _deĀ facto_ officer can be applied to such an office +at all. In the present case, Brewster went into the State-House and +voted for Mr. Hayes; at the same instant his rival went into the same +State-House and voted for Mr. Tilden. It is absurd to pronounce +Brewster, under such circumstances, an elector _deĀ facto_, so as to make +his vote for that reason good against his rival in the Tilden college, +who was as much an elector _deĀ facto_ as was Brewster, and had this +difference in his favor, that he was elected, and was eligible, while +Brewster, the intruder, was not eligible, and was not elected. The only +returns which went to the Electoral Commission were the double ones, +where rival colleges of electors had acted at the same time in the same +State. In those cases, as already observed, the question of a _deĀ facto_ +elector could not arise. There was but one case, that of Wisconsin, +where it could have arisen, and in that there was but a single return, +which, of course, did not go to the Commission. + + +CONCLUSION. + +Although these pages have been occupied with the vote of Brewster in the +electoral college, it should not be understood, that the other seven +votes which were counted from that State, and the four votes counted +from Florida, were any better than his. The one here considered had its +peculiarities; the others had theirs. All of them were tainted, and the +counting in of the President _deĀ facto_ was twelve times fraudulent. +What may be the outcome I do not know. That will depend upon the spirit +of this generation and the spirit of those to follow. It is a +consolation to know that the questions will be reviewed by a tribunal +higher than the Electoral Commission, higher even than the two Houses of +Congress-the American people--from whose judgment there is no appeal but +to the final judgment of history. + +NEW YORK, _March 28, 1877_. + + * * * * * + + +Transcriber's note + + +The following changes have been made to the text: + +Page 4: "contine" changed to "confine". + +Page 7: "recived" changed to "received". + +Page 22: "de-facto" changed to "de facto". + + +All other inconsistencies are as in the original. + + + + + + +End of the Project Gutenberg EBook of The Vote That Made the President, by +David Dudley Field + +*** END OF THE PROJECT GUTENBERG EBOOK 30231 *** diff --git a/30231-h/30231-h.htm b/30231-h/30231-h.htm new file mode 100644 index 0000000..1fec22a --- /dev/null +++ b/30231-h/30231-h.htm @@ -0,0 +1,984 @@ +<!DOCTYPE html PUBLIC "-//W3C//DTD XHTML 1.0 Strict//EN" + "http://www.w3.org/TR/xhtml1/DTD/xhtml1-strict.dtd"> + +<html xmlns="http://www.w3.org/1999/xhtml" xml:lang="en" lang="en"> + <head> + <meta http-equiv="Content-Type" content="text/html;charset=UTF-8" /> + <meta http-equiv="Content-Style-Type" content="text/css" /> + <title> + The Project Gutenberg eBook of The Vote That Made the President, by David Dudley Field. + </title> + <style type="text/css"> + +body { + margin-left: 10%; + margin-right: 10%; +} + + h1,h2,h3,h4,h5,h6 { + text-align: center; /* all headings centered */ + clear: both; +} + +p { + margin-top: .75em; + text-align: justify; + margin-bottom: .75em; +} + +.fm2 {font-size: 125%; + text-align: center; + font-weight: bold; +} + +.fm3 {font-size: 100%; + text-align: center; + font-weight: bold; +} + +.fm4 {font-size: 90%; + text-align: center; + font-weight: bold; +} + +hr { + width: 33%; + margin-top: 2em; + margin-bottom: 2em; + margin-left: auto; + margin-right: auto; + clear: both; +} + +table {margin: auto; text-align: center; width: 35em;} +td.tdl {text-align: left; padding-right: .5em;} +td.tdr {text-align: right; padding-left: .5em;} +td.tdc {text-align: center} +td.page {font-size: 90%;} + +.author {text-align: right; margin-right: 20%;} + +.pagenum { /* uncomment the next line for invisible page numbers */ + /* visibility: hidden; */ + position: absolute; + left: 92%; + font-size: smaller; + text-align: right; +} /* page numbers */ + + +.blockquot { + margin-left: 5%; + margin-right: 10%; +} + +.center {text-align: center;} + +.smcap {font-variant: small-caps;} + + +.transnote { background-color: #ADD8E6; color: inherit; margin: 2em 10% 1em 10%; font-size: 80%; padding: 0.5em 1em 0.5em 1em;} +.transnote p { text-align: left;} + +ins.correction { + text-decoration:none; /* replace default underline.. */ + border-bottom: thin dotted red; /* ..with thin dotted red */ +} + + </style> + </head> +<body> +<div>*** START OF THE PROJECT GUTENBERG EBOOK 30231 ***</div> + +<h1>THE VOTE<br /> +THAT<br /> +MADE THE PRESIDENT.</h1> + +<p><br /></p> +<p class="fm4">BY</p> +<p class="fm2">DAVID DUDLEY FIELD.</p> + +<p><br /></p> +<p class="fm2">NEW YORK:<br /> +D. APPLETON & COMPANY,</p> +<p class="fm3">549 & 551 BROADWAY.<br /> +1877.</p> + + + +<hr style="width: 65%;" /> +<p class="fm4"><span class="smcap">Copyright by</span> DAVID DUDLEY FIELD. 1877.</p> + + + +<hr style="width: 65%;" /> +<p><span class='pagenum'><a name="Page_3" id="Page_3">[3]</a></span></p> +<h2><a name="THE_VOTE_THAT_MADE_THE_PRESIDENT" id="THE_VOTE_THAT_MADE_THE_PRESIDENT"></a>THE VOTE THAT MADE THE PRESIDENT.</h2> + + +<p>At ten minutes past four o'clock on the second morning of the present +month (March, 1877), the President of the Senate of the United States, +in the presence of the two Houses of Congress, made this announcement: +"The whole number of the electors appointed to vote for President and +Vice-President of the United States is 369, of which a majority is 185. +The state of the vote for President of the United States, as delivered +by the tellers, and as determined under the act of Congress, approved +January 29, 1877, on this subject, is: for Rutherford B. Hayes, of Ohio, +185 votes; for Samuel J. Tilden, of New York, 184 votes;" and then, +after mentioning the votes for Vice-President, he proceeded: "Wherefore +I do declare, that Rutherford B. Hayes, of Ohio, having received a +majority of the whole number of electoral votes, is duly elected +President of the United States for four years, commencing on the fourth +day of March, 1877."</p> + +<p>Mr. Hayes was thus declared elected by a majority of one. If any vote +counted for him had been counted on the other side, Mr. Tilden, instead +of Mr. Hayes, would have had the 185 votes; if it had been rejected +altogether, each would have had 184 votes, and the House of +Representatives would immediately have elected Mr. Tilden. One vote, +therefore, put Mr. Hayes into the presidential office.<span class='pagenum'><a name="Page_4" id="Page_4">[4]</a></span></p> + +<p>To make up the 185 votes counted for him, 8 came from Louisiana and 4 +from Florida. Whether they should have been thus counted is a question +that affects the honor, the conscience, and the interests of the +American people. There is not a person living in this country who has +not a direct concern in a just answer. Not one will ever live in it +whose respect for this generation will not depend in some degree upon +that answer.</p> + +<p>The 12 votes were not all alike. Some had one distinction, some another. +But, not to distract attention by the discussion of several transactions +instead of one, and because one in the present instance actually +determined the result, I will <a name='TC_1'></a><ins class="correction" title="Was 'contine'">confine</ins> my observations to a single vote. +For this purpose let us take one of the votes from Louisiana, that, for +instance, of Orlando H. Brewster.</p> + +<p>Brewster was not appointed an elector, inasmuch as he did not receive a +majority of the votes cast by the people of Louisiana, and inasmuch also +as he could not have been appointed if he had received them all.</p> + + +<h3><span class="smcap">He did not receive a Majority of the Votes.</span></h3> + +<p>It would be a waste of time and patience to go through the testimony +taken by the two Houses of Congress for their own information, before +they consented to call in the advice of the Electoral Commission. The +evidence of wrongs on both sides, and the irreconcilable contradictions +of witnesses, made President Seelye and Mr. Pierce, of Massachusetts, +declare it to be impossible for them to reach a satisfactory conclusion +upon the facts, and compelled them to break away from their party, and +refuse to abide by the advice of the Commission. There are certain +things, however, which we know beyond dispute, or about which there is +and can be no controversy, and these only will I mention. We know that +the number of votes cast in Louisiana for the Tilden electors, taking +the first name on the list as representing all, was 83,723, but that the +certificate of the Returning Board put them at 70,508, turning Mr. +Tilden's majority of more than 6,000 into a majority for Mr. Hayes; and +we know that the reduction was made by throwing out more than 13,000 +votes of legal voters<span class='pagenum'><a name="Page_5" id="Page_5">[5]</a></span> voting legally for Mr. Tilden, and that more than +10,000 of these were thrown out upon the assumed authority of a statute +of Louisiana, which in terms gave the board power to throw out votes, +upon examination and deliberation, "whenever, from any poll or +voting-place, there shall be received the <i>statement of any supervisor</i> +of registration <i>or commissioner</i> of election, in form as required by +section 26 of this act, <i>on affidavit of three or more citizens</i>, of any +riot, tumult, acts of violence, intimidation, armed disturbance, +bribery, or corrupt influences, which prevented, or tended to prevent, a +fair, free, and peaceable vote of all qualified electors entitled to +vote at such poll or voting-place."</p> + +<p>Whether the statute itself has its warrant in the Constitution is a +question not necessary now to be considered. For my part, I cannot see +the authority for taking out of the ballot-boxes the ballots of lawful +voters and throwing them away because other voters did not vote, +whatever may have been the cause of their not voting, whether they were +frightened, foolish, or perverse. I cannot for the life of me perceive +that the State can be held to have elected persons whom it did not in +fact elect, because it is conjectured, or even made probable, that if +voters who kept away from the polls had in fact attended and voted, they +would have made a majority for these persons.</p> + +<p>Without going into that question, however, and assuming for the sake of +the argument that the statute had all the authority of the most clearly +valid statute that was ever passed, it is certain that the only ground +upon which a vote could have been thrown out, for intimidation or other +corrupt influence, was the statement of a supervisor of registration or +commissioner of election, founded upon the affidavits of three citizens. +When, however, the vote of Louisiana was before the Electoral +Commission, the following offer was made by counsel:</p> + +<div class="blockquot"><p>"We offer to prove that <i>the statements and affidavits</i> purporting +to have been made and forwarded to said Returning Board in +pursuance of the provisions of section 26, of the election law of +1872, alleging riot, tumult, intimidation, and violence, at or near +certain polls, and in certain parishes, <i>were</i> falsely fabricated +and <i>forged</i> by certain disreputable persons <i>under the direction</i>, +and with the knowledge, <i>of said Returning Board</i>,<span class='pagenum'><a name="Page_6" id="Page_6">[6]</a></span> and that said +Returning Board, knowing said statements and affidavits to be false +and forged, and that none of the said statements or affidavits were +made in the manner or form or within the time required by law, did +knowingly, willfully, and fraudulently, fail and refuse to canvass +or compile more than 10,000 votes lawfully cast, as is shown by the +statements of votes of the Commissioners of Election."</p></div> + +<p>This offer the Commission rejected by a vote of 8 to 7.</p> + +<p>In the Commission Mr. Abbott moved the following:</p> + +<div class="blockquot"><p>"<i>Resolved</i>, That testimony tending to show that the so-called +Returning Board of Louisiana had no jurisdiction to canvass the +votes for electors of President and Vice-President is admissible."</p></div> + +<p>This was rejected by the same vote.</p> + +<p>In explaining the reason of their decision in the case, the Commission +used the following language:</p> + +<div class="blockquot"><p>"And the Commission has, by a majority of votes, decided, and does +hereby decide, that it is not competent, under the Constitution and +the law as it existed at the date of the passage of said act, to go +into evidence <i>aliunde</i>, the papers opened by the President of the +Senate, in the presence of the two Houses, to prove that other +persons than those regularly certified to by the Governor of the +State of Louisiana, on and according to the determination and +declaration of their appointment by the returning officers for +elections in the said State prior to the time required for the +performance of their duties, had been appointed electors, or by +counter-proof to show that they had not; or that the determination +of the said returning officers was not in accordance with the truth +and the fact, the Commission, by a majority of votes, being of +opinion that it is not within the jurisdiction of the two Houses of +Congress, assembled to count the votes for President and +Vice-President, to enter upon a trial of such questions."</p></div> + +<p>Whether, therefore, the decisions of the Commission or the reasons given +for them be sound or unsound, it may be assumed, that <i>Brewster did not +receive a majority of the votes cast by the people of Louisiana, and +that the action of the Returning Board</i> in cutting down the majority of +his competitor, so as to reduce it below his, <i>was taken without +jurisdiction, and upon the pretense of statements and affidavits which +they themselves had caused to be forged</i>.<span class='pagenum'><a name="Page_7" id="Page_7">[7]</a></span></p> + + +<h3><span class="smcap">Brewster could not have been appointed Elector if he had received the +Votes of all the People of Louisiana.</span></h3> + +<p>He had been made Surveyor-General of the United States, for the District +of Louisiana, on the 2d of February, 1874; was recommissioned by +President Grant on the 11th of February, 1875, and is at present +exercising the office. Whether he has ever been out of the office +depends upon the facts now to be mentioned. Eight or nine days after the +election of November 7, 1876, at which he was a candidate on the +Republican electoral ticket, there was <a name='TC_2'></a><ins class="correction" title="Was 'recived'">received</ins> at the Department of the +Interior, from the hands of the President, this letter:</p> + +<div class="blockquot"><p class="author"><span class="smcap">Monroe</span>, <i>November 4, 1876</i>.</p> + +<p><span class="smcap">Dear Sir</span>: I hereby tender my resignation of the office of +Surveyor-General of the State of Louisiana, with the request that +it be accepted immediately. With many thanks for your kindness,</p> + +<p class="author"> +I remain, yours respectfully,<br /> +<span class="smcap">O. H. Brewster</span>.</p> +<p><span class="smcap">U. S. Grant</span>, <i>President United States</i>.<br /> +</p> + +</div> + +<p>When the letter was written does not appear. It is certain that Brewster +was acting as Surveyor-General on the 10th of November.</p> + +<p>On the 16th of November a letter was addressed to the Commissioner of +the General Land-Office, as follows:</p> + +<div class="blockquot"> +<table border="0" cellpadding="0" cellspacing="0" summary="Interior"> +<colgroup span="3"> +<col width="150"></col> +<col align="right"></col> +</colgroup> + <tr><td> </td><td align="right" class="tdright"><span class="smcap">Department of the Interior</span>,<br /> + <span class="smcap">Washington</span>, <i>November 16, 1876</i>.</td> + <td valign="middle" align="left" style="white-space: nowrap; font-size: 40pt"> + }</td> +</tr> +</table> + +<p><span class="smcap">Sir:</span> I have received the resignation of Mr. Orlando H. Brewster, +Surveyor-General of Louisiana, which he has requested may take +effect immediately. Please inform Mr. Brewster that his resignation +has been accepted by the President, to take effect November 4th +instant, that being the date of his letter of resignation to this +Department.</p> + +<p class="author"> +Very respectfully,<br /> +<span class="smcap">Z. Chandler</span>, <i>Secretary</i>.</p> +</div> + +<p>At what time, if ever, the Commissioner informed Brewster of the +acceptance of his resignation we do not know, but it could not have been +earlier than the 20th of November.</p> + +<p>On the morning of the 6th of December, the four men who assumed to act +as the Returning Board of Louisiana filed<span class='pagenum'><a name="Page_8" id="Page_8">[8]</a></span> in the office of the +Secretary of that State a certificate that Brewster, with seven other +persons, had been appointed presidential electors. There was then on the +statute-book of Louisiana this enactment:</p> + +<div class="blockquot"><p>"If any one or more of the electors chosen by the people shall fail +from any cause whatever to attend at the appointed place at the +hour of 4 <span class="smcap">p.m.</span> of the day prescribed for their meeting, it shall be +the duty of the other electors immediately to proceed by ballot to +fill such vacancy or vacancies."</p></div> + + +<p>What Brewster did is thus told by Kellogg, one of the Hayes electors, on +his examination at Washington in January:</p> + +<div class="blockquot"><p>"<i>Q.</i> Did Levissee and Brewster vote at the meeting of electors?<br /> +<i>A.</i> I believe they did.<br /> +<i>Q.</i> Was not an appointment made for +somebody to fill Brewster's place?<br /> +<i>A.</i> I believe that that is the +case.</p> + +<p><i>Q.</i> Who was appointed to fill Brewster's place?<br /> +<i>A.</i> Brewster himself.<br /> +<i>Q.</i> The same man?<br /> +<i>A.</i> The same man.</p> + +<p><i>Q.</i> Were you also instructed by these committees (National and +Congressional Republican Committees) how to dispose of Brewster and +Levissee?<br /> +<i>A.</i> My recollection is that some one of the electors had +received a letter suggesting that in case of a vacancy or in case +of the absence of Levissee and Brewster, they should be chosen in +their own places. That is my recollection.</p> + +<p><i>Q.</i> And yet they absented themselves from the electoral college, +and you filled their vacancies with themselves?<br /> +<i>A.</i> They were +absent from the college when the college met, and we filled their +vacancies by themselves."</p></div> + +<p>Being thus installed, they voted for Mr. Hayes within an hour after they +were chosen to fill their own vacancies; and three days afterward +Brewster addressed the following letter to the President:<span class='pagenum'><a name="Page_9" id="Page_9">[9]</a></span></p> + +<div class="blockquot"><p class="author"><span class="smcap">New Orleans, Louisiana</span>, <i>December 9, 1876.</i></p> + +<p><span class="smcap">Sir:</span> I respectfully apply to be appointed Surveyor-General for the +District of Louisiana. Commendations from prominent gentlemen will +be submitted to your Excellency to justify the appointment.</p> + +<p class="author"> +I have the honor to remain<br /> +Your very obedient servant,<br /> +<span class="smcap">Orlando H. Brewster.</span></p> +<p><span class="smcap">U. S. Grant</span>, <i>President United States, Washington, D. C.</i><br /> +</p> + +</div> + +<p>The reappointment was made on the 5th of January, 1877. The Chief of the +Appointment Division in the Interior Department was asked and testified +about it as follows:</p> + +<div class="blockquot"><p>"<i>Q.</i> Who recommended his appointment in January?<br /> +<i>A.</i> I think the +probability is (although there is no evidence of it) that there was +no recommendation, further than his own application to the +President.<br /> +<i>Q.</i> You do not know of any recommendation?<br /> +<i>A.</i> I do +not know of any.<br /> +<i>Q.</i> There is none on file?<br /> +<i>A.</i> There is none on +file to the best of my knowledge. There is none on file in the +Interior Department."</p></div> + +<p>Who does not perceive the shallow trick by which Brewster pretended to +have divested himself of his Federal office that he might vote; only to +be reinvested as soon as he had voted?</p> + +<p>The letter of resignation, with its false date, and its pretended +acceptance, to take effect as of a time past, were evident shams to make +it appear that he was not holder of a Federal office when he was +elected; his affecting to be absent on the 6th of December, and coming +in immediately to fill the vacancy occasioned by his own absence, in +order to make it appear that his appointment was made on that 6th of +December, instead of the 7th of November, and his barefaced application +on the third day thereafter to be reappointed to the Federal office, +from which he could not possibly have perfected his resignation before +the 20th of November—all these were but so many contrivances to evade +the highest enactment known to our civil polity. In the eye of reason +and of law, he acted during the whole period under that influence of +office which it was the design of the Constitution to prevent, and he<span class='pagenum'><a name="Page_10" id="Page_10">[10]</a></span> +must have entered more thoroughly into the work of his Federal master +than if he had not gone through the form of resigning, inasmuch as that +placed him, more than before, in his master's power.</p> + +<p>Let us now place side by side the commandment of the Constitution and +the resolution of the Electoral Commission:</p> + +<table summary="COMMANDMENT"> +<tr> +<td class="tdc">COMMANDMENT.</td> +<td class="tdl"> </td> +<td class="tdc">RESOLUTION.</td> +</tr> +<tr> +<td class="tdl">"<i>No</i> Senator or Representative,</td> +<td class="tdl"> </td> +<td class="tdl">"The Commission by a majority</td> +</tr> +<tr> +<td class="tdl">or <i>person holding an office of trust</i></td> +<td class="tdl"> </td> +<td class="tdl">of votes, is also of the opinion that</td> +</tr> +<tr> +<td class="tdl"><i>or profit under the United States,</i></td> +<td class="tdl"> </td> +<td class="tdl"><i>it is not competent to prove that any</i></td> +</tr> +<tr> +<td class="tdl"><i>shall be appointed an elector.</i>"</td> +<td class="tdl"> </td> +<td class="tdl"><i>of said persons, so appointed electors</i></td> +</tr> +<tr> +<td class="tdl"> </td> +<td class="tdl"> </td> +<td class="tdl">as aforesaid, <i>held an office of trust or</i></td> +</tr> +<tr> +<td class="tdl"> </td> +<td class="tdl"> </td> +<td class="tdl"><i>profit under the United States at the</i></td> +</tr> +<tr> +<td class="tdl"> </td> +<td class="tdl"> </td> +<td class="tdl"><i>time when they were appointed</i>, or</td> +</tr> +<tr> +<td class="tdl"> </td> +<td class="tdl"> </td> +<td class="tdl">that they were ineligible under the</td> +</tr> +<tr> +<td class="tdl"> </td> +<td class="tdl"> </td> +<td class="tdl">laws of the State, or any other matter</td> +</tr> +<tr> +<td class="tdl"> </td> +<td class="tdl"> </td> +<td class="tdl">offered to be proved <i>aliunde</i> the</td> +</tr> +<tr> +<td class="tdl"> </td> +<td class="tdl"> </td> +<td class="tdl">said certificates and papers."</td> +</tr> +</table> + + +<p>It would be unjust to cast upon the Electoral Commission the blame of +all the wrong that has been practised in this presidential count. The +Commission was but a council of advice, which Congress might have taken +or not, as it pleased, the only condition being that, in order to reject +it, both Houses must have agreed. The responsibility of the final +decision lay, after all, upon Congress, or rather, upon the Senate, +which voted throughout to follow the Commission.</p> + +<hr style="width: 45%;" /> + +<p>The facts thus briefly recited present certain questions—moral, +political, and legal—which cannot be considered too soon for our good +repute and our self-respect.</p> + + +<h3><span class="smcap">The Moral Question.</span></h3> + +<p>Whatever differences of opinion there may be about the political and +legal questions involved, there can be none about the moral. The +presidential office is the gift of the people of the several States, of +their own free-will, expressed according to the laws. A falsification of +that will is an offense against the State where it is committed, and +against all the<span class='pagenum'><a name="Page_11" id="Page_11">[11]</a></span> States. If the falsification is beyond the reach of the +law, it is not beyond the reach of the conscience. A robbery is none the +less a robbery because it is beyond the range of vision or the arm of +justice. If the possessor of an estate has entered through the forgery +of a record or the spoliation of a will, which although believed by +every neighbor is beyond judicial proof, all the world pronounces his +possession fraudulent, even though he scatters his wealth in charities +and gathers many companions around his luxurious table. The example is +corrupting, but it is against the eternal law of justice that the act +should be respected or the actors continue forever to prosper.</p> + +<p>It is no answer to these observations to say that frauds have been +practised on the other side. Unhappily there is too much reason to +believe that neither party is free from practices which are at once a +scourge and a dishonor. Neither has the disgraceful monopoly of such +practices, whichever may have the bad preëminence. But this is certain: +one wrong neither justifies nor palliates another.</p> + +<p>There is no set-off known to the moral law. Because A has defrauded B, +that is no reason why B should defraud A. If it were so, society would +go on forever in a compound ratio of crime. The first breach of the law +would furnish excuse for the second, and their progeny would follow in +sad progression to the end of time. This is not, however, the moral +condition of the world. The <i>lex talionis</i> has been abolished by the law +of civilization and the higher law of the gospel.</p> + +<p>In this case of Louisiana there can be neither excuse nor palliation for +the misconduct of the Returning Board.</p> + +<p>On the 10th of November, President Grant telegraphed to the General of +the Army instructions about troops in Louisiana and Florida, and added +that "<i>no man worthy of the office of President should be willing to +hold it if counted in or placed there by fraud</i>. Either party can afford +to be disappointed in the result. <i>The country cannot afford to have the +result tainted by the suspicion of illegal or false returns.</i>" And +again: "The presence of citizens from other States, I understand, is +requested in Louisiana, to see that the Board of Canvassers makes <i>a +fair count of the vote actually cast</i>. It<span class='pagenum'><a name="Page_12" id="Page_12">[12]</a></span> is to be hoped that +representative and fair men of both parties will go."</p> + +<p>Did the President of that day misrepresent his party, or his successor, +or has the party changed and the successor also? Had the virtuous +impulses of November faded away in February? Was there a change of heart +or a change of opportunity? Neither Congress nor the Electoral +Commission could give an <i>honest</i> title, without investigating the +honesty of the transactions on which the title was founded; and yet a +President has been installed, in the face of rejected offers to prove +frauds, the grossest, the most shameless, and the most corrupting, in +all our history.</p> + +<p>Then what was the object of the committees of each House of Congress, +sent into the disputed States? Was it to blind the people? Was it to +conceal a meditated fraud? On the very first day of the session, +December 4th, Mr. Edmunds, in the Senate, moved certain resolutions, of +which this was one:</p> + +<div class="blockquot"><p>"<i>Resolved further</i>, That the said committee" (the Committee on +Privileges and Elections) "be, and is hereby, instructed to inquire +into the eligibility to office under the Constitution of the United +States of any persons alleged to have been ineligible on the 7th +day of November last, or to be ineligible as electors of President +and Vice-President of the United States, to whom certificates of +election have been, or shall be, issued by the Executive authority +of any State, as such electors, and <i>whether the appointment of +electors</i>, or those claiming to be such, in any of the States, <i>has +been made either by force, fraud, or other means otherwise than in +conformity with the Constitution and laws of the United States, and +the laws of the respective States</i>; and whether any such +appointment or action of any such elector has been in any wise +unconstitutionally or unlawfully interfered with; and to inquire +and report whether Congress has any constitutional power, and, if +so, what and the extent thereof, in respect of the appointment of +or action of electors of President and Vice-President of the United +States, or over returns or certificates of votes of such electors," +etc.</p></div> + +<p>Was all this parade of committees sent hither and thither, summoning +witnesses from far and near, committing the recusant to prison, and +looking into State archives; was all this a mock show, a piece of +pantomime, for the amusement of the lookers-on, while conspirators were +plotting how to conceal<span class='pagenum'><a name="Page_13" id="Page_13">[13]</a></span> what they pretended to be wishing to discover? +Taken all in all, the sounding profession, the bustling search, and the +studied concealment, make a drama, half comedy and half tragedy, the +like of which this generation has not seen till now, but the like of +which it and its successors may see many times, if the audience does not +hiss the play, and remit the actors to the streets.</p> + +<p>It has been objected, as a reason for not receiving offered evidence, +that there was not time to take it before the 4th of March. How was that +known? Perhaps it could have been taken in an hour. Why was not the +question asked, how much time the evidence would take, before it was +excluded? If the certificate was false, and the falsehood was +susceptible of proof, every effort possible should have been made to +receive it, and receive it all. It is not commonly accepted as good +reason for not searching after the truth, that the search may be +difficult. Nor is it an unusual occurrence to require an argument or +decision to be made within a period limited. Ten minutes' speeches in +Congress, two hours' argument in the Supreme Court, a jury shut in a +room until they agree upon a verdict, a court required by statute to +render its decision by a day fixed, are not so strange as to be +remarkable, or found in practice so embarrassing as to cause the +practice to be abandoned.</p> + +<p>Nor is it any answer to say that, if the offer of evidence had been +accepted, the proof would have fallen short of the offer. That does not +lie in the mouth of any one to say, who excluded the evidence, or +justified its exclusion. The characters of the counsel who made the +offer, and of the commissioner who moved its acceptance, are a guarantee +not only of their good faith, but of a reason for their belief. No man +has any right to deny that the proof offered would have been made good, +who refused the opportunity. They who closed their ears should in +decency keep their mouths shut. But it was not the counsel and the +commissioner alone who believed that the proof offered would be made +good. Every one who witnessed the examinations in Washington, every one +who read the testimony taken by the Congressional Committees in +Louisiana, must have been satisfied that the conduct of the<span class='pagenum'><a name="Page_14" id="Page_14">[14]</a></span> Returning +Board was throughout unlawful, wicked, and shocking, to the last degree.</p> + +<p>The title of the acting President, however valid in law, if valid at +all, is tainted with fraud in fact. There was fraud in certifying that +Brewster had received a majority of the votes of Louisiana, and fraud in +attempting to evade that part of the Constitution which pronounced his +disqualification. When the Electoral Commission advised Congress, and +Congress accepted, by not rejecting, the advice, that fraud could not be +proved, that advice being but the equivalent of saying that fraud was of +no consequence; when it advised that the incompetency of the Returning +Board, for want of jurisdiction, could not be proved, such proof being +but the equivalent of proof that the pretended board was not a board at +all; when it advised that the forgery, by direction of the board, of the +statements and affidavits on which it pretended to act as true could not +be proved, that proof being but the equivalent of proof that the +pretended statements and affidavits were not statements and affidavits +at all; when it advised that the barrier raised by the Constitution +against the appointment of a Federal officer to choose a Federal +President, was not a barrier at all—the moral sense of the whole +American people was shocked. No form of words can cover up the +falsehood; no sophistry can hide it; no lapse of time wash it out. It +will follow its contrivers wherever they go, confront them whenever they +turn, and as often as one of them asks the suffrages of his countrymen, +he may expect to hear them reply, "Why do you reason with us, why seek +to persuade us into giving you our votes, you that have taught us such a +contempt for votes, that one fraudulent certificate is better than ten +thousand of them?"</p> + + +<h3><span class="smcap">The Political Question.</span></h3> + +<p>The advice of the Commission, with the consequent action of Congress, +was a virtual affirmation of this proposition, that if on the morning of +the 6th of December the Federal general commanding in Louisiana had +surrounded the State-House with soldiers, and marching in eight of his +captains,<span class='pagenum'><a name="Page_15" id="Page_15">[15]</a></span> had compelled the Returning Board to certify their +appointment as electors, and the Governor to add his certificate, +Congress and the country would have been obliged to accept the votes of +these captains as the constitutional and lawful votes of Louisiana +electors. Whoever supposes that the union of these States can endure +under such an interpretation of their fundamental law, must be endowed +with credulity beyond the simplicity of childhood. The doctrine is an +open invitation to transgression and usurpation. The judicious +disposition of a few troops in the capitals of disputed States, on the +day of the electoral vote, will perpetuate an Administration just so +long as the audacity of a President, or the cupidity of his +office-holders, may find it desirable; unless, indeed, it be found, as +is most likely, that the ways of fraud are cheaper, easier, and less +palpable than the ways of force.</p> + + +<h3><span class="smcap">The Legal Question.</span></h3> + +<p><i>As to the conclusiveness of the Governor's and canvassers' +certificates.</i> The doctrine of the majority of the Commission, and of +the Senate, is, that the certificate of the Governor "<i>on and according +to the determination and declaration</i>" of the State canvassers, cannot +be shown to be false, though it may have been obtained by force or +fraud. This doctrine admits that the truth of the <i>Governor's</i> +certificate can be inquired into, else why the qualification that it +must be "<i>on and according to</i>" the canvasser's certificate. It is said +to be good only when in such accord; therefore, when not in accord, it +is good for nothing. We may, then, dismiss the Governor's certificate as +of no account, and to be left therefore out of further discussion. The +substance of the doctrine is, that the <i>certificate of the State +canvassers</i> cannot be contradicted.</p> + +<p>This language must, of course, be understood, as used in reference to +the question at that time depending; that is to say, whether evidence to +contradict or annul the certificate was then and there admissible. It +had already been decided in the Florida case that no action of the State +authorities, after the electors had voted, could affect the validity of +the vote. Whether such action before the vote would have been of any<span class='pagenum'><a name="Page_16" id="Page_16">[16]</a></span> +avail was not decided, and will never be decided, unless a radical +change is made in the laws, since, according to present legislation, the +vote of the electors treads fast on the heels of their appointment. In +Florida, they were declared appointed at three o'clock in the morning, +and they voted at twelve, just nine hours afterward. In Louisiana the +interval was even less. To suppose that any State action would or could +be had in such an interval, or in any interval possible under present +laws, would be as wild as to suppose that counting in a President by +fraud will not be followed by imitators at future elections.</p> + +<p>Taking the doctrine, however, precisely as it was applied in the +instance of Louisiana, it is this: that the certificate of State +canvassers cannot be impeached by evidence showing either that they had +no jurisdiction to canvass the electoral vote at all, or that they had +no jurisdiction to throw away votes that were actually cast, inasmuch as +the power to throw away came into existence only when affidavits were +laid before them, and there were no affidavits except such as they had +caused to be forged, which, in the eye of the law, were not affidavits +at all.</p> + +<p>One would say that such a doctrine, held up in its nakedness, need +hardly be attacked, for no man, not maddened by the fanaticism of party, +would be found willing to defend it; yet if not defended, the +disposition of the Louisiana case must be pronounced as unsound in law +as it was injurious in policy and offensive in morals. But I go further, +and deny the conclusiveness of the canvassers' certificate under any +circumstances. Suppose the question to be put thus: Can the certificate +of State canvassers, acting within the scope of their authority, be +questioned by evidence of mistake, fraud, or duress; what should be the +answer? Most certainly it can, should be answered.</p> + +<p>The statutes of the State may or may not have declared the effect of the +certificate. In the case of Louisiana, this was the only statute +relevant:</p> + +<div class="blockquot"><p>"The returns of the elections thus made and promulgated shall be +<i>prima-facie</i> evidence in all courts of justice and before all +civil officers, until set aside after a contest according to law, +of the right of any person<span class='pagenum'><a name="Page_17" id="Page_17">[17]</a></span> named therein to hold and exercise the +office to which he shall by such return be declared elected."</p></div> + +<p>Whatever doubt may have been expressed or felt whether this statute +applied to the canvassers of a presidential election, or whether the +words <i>prima facie</i> really meant <i>prima facie</i>, or whether "courts of +justice," and "civil officers," included the Electoral Commission and +the two Houses of Congress, there can be no doubt that "the returns of +the elections thus made and promulgated" do not include returns +canvassed without jurisdiction, or made under cover of pretended +affidavits which the returning officers themselves caused to be forged.</p> + +<p>But, passing from this view of the subject, although this is sufficient +to dispose of Brewster's pretensions, let us suppose a stronger +case—the strongest supposable—that of a State Legislature directing +not only the manner in which electors shall be appointed, but directing +also that the certificate of the State canvassers shall be conclusive +evidence that the State has appointed in the manner directed.</p> + +<p>Because the Constitution provides that electors shall be appointed by +the State, in the manner directed by its Legislature, it is thence +inferred that the State must furnish the evidence of the appointment, +and of course that none can be received except that which the State has +furnished. And this is said to be the true States-rights doctrine. It is +a strange sight, that of gentlemen clamoring for State rights who will +not allow the people of Louisiana and South Carolina to take care of +themselves; who are even now debating at Washington whether they shall +not order new elections in those States, or which of two State +governments they shall put up and which put down, and who since the war +have treated the South as if no States were there, parceling it into +military districts, and denying recognition until constitutional +amendments were ratified. Their assertion of the conclusiveness of false +and fraudulent canvassers' certificates, on the pretense of upholding +State rights, should seem to be thrown in our faces by way of bravado, +unless it be meant, indeed, for burlesque masking hypocrisy. But if the +sight were not strange, and those gentlemen had been all along as +careful of the rights of<span class='pagenum'><a name="Page_18" id="Page_18">[18]</a></span> the States as they are of their own places, +there is nothing in the claim for the conclusiveness of canvassers' +certificates which receives support from the doctrine of State rights. +On the contrary, the rights of the States are best preserved by fencing +them against force or fraud, by leaving them untrammeled in their own +action, and leaving us untrammeled in finding out what that action has +been. No rights are ever lost by letting in the light.</p> + +<p>A certificate can be conclusive evidence of the States' action, only +when the act and the certificate are identical. If the Constitution had +provided that there should be sent from each State a certificate signed +by such persons as the Legislature might designate, declaring who should +cast the electoral votes, then the only inquiry that could have been +made at Washington would have been, whether the certificate sent up was +so signed and the persons therein mentioned had voted; but the +Constitution has provided nothing of the kind. It has provided that the +State shall appoint in the manner directed by its Legislature, and the +inquiry thereupon to be made at the Capitol is, "Whom has the State +appointed in the manner directed?"</p> + +<p>We agree that the State has complete power, within certain limits +regarding the persons who may be appointed, to appoint its electors in +any manner its Legislature may direct, but whether the State has done so +is open to inquiry. Canvassers of votes are not the State, or the +Legislature of the State, and their certificate is nothing but evidence. +Two facts are to be shown: one that the State has acted, and the other +that the act has been in conformity to the directions of the +Legislature. There is nothing in positive law, or in the reason of +things, which, if the fact certified do not exist, requires that its +falsity should not be open to proof.</p> + +<p>The Electoral Commission and the Senate read the Constitution as if the +words following in italics were part of it:</p> + +<div class="blockquot"><p>"Each State shall appoint, in such manner as the Legislature +thereof may direct, a number of electors equal to the whole number +of Senators and Representatives to which the State may be entitled +in the Congress; but no Senator or Representative, or person +holding an office of trust or profit under the United States, shall +be appointed an elector." <i>And the</i><span class='pagenum'><a name="Page_19" id="Page_19">[19]</a></span> <i>certificate of such officers as +the Legislature of the State may designate shall be conclusive +evidence, not only that the persons certified were appointed by the +State, but that they were appointed in the manner directed by its +Legislature, any mistake, fraud, or duress, of the certifying +officers to the contrary notwithstanding</i>.</p></div> + +<p>But the words of the Constitution as they stand do not carry with them +the words in italics, or their substance; and if it had been proposed to +add them when the Constitution was presented to the people, I do not +believe that they would have been accepted.</p> + +<p>Had it been suggested to the freemen of Massachusetts or Connecticut +that they should give to the Legislature of another State not only the +right of designating how the electors should be chosen, whose voices +might make a President for them, but also the right to designate a +permanent board, with power to say, in the face of the truth, who had or +had not been chosen, the voices of John Hancock and Oliver Ellsworth +would surely have warned the good people of their native Commonwealths +against so dangerous a proposition.</p> + +<p>There is no necessary connection between an appointment and the +certificate of it, unless the two acts are performed by the same +persons. If the appointment of electors for Louisiana had been committed +to the Returning Board, then there might be reason for saying that the +certificate was conclusive, because they appointed when they certified. +But the board had not the power of appointment. That power could not +have been given to them, if the Legislature of Louisiana had so +intended, and it did not so intend.</p> + +<p>The power to give a conclusive certificate of appointment—that is, a +certificate that precludes further inquiry—is virtually a power to +appoint, since no one is then permitted to go behind the certificate to +show that there was neither valid appointment nor form of appointment. +Unless, therefore, the Legislature of Louisiana could, under the +Constitution, confer upon the Returning Board power to appoint +presidential electors for Louisiana, it could not confer upon it power +to give a conclusive certificate of appointment. The constitution of +this Returning Board is known to us all. It was a permanent body, +holding for an undefined period, or for<span class='pagenum'><a name="Page_20" id="Page_20">[20]</a></span> life, consisting of four +persons of one party, when there should have been five, of different +parties; and the four had persistently refused for years to select a +fifth. To pretend that such a body was, or could lawfully be, empowered +to appoint eight electors for the people of Louisiana, to match the +eight who were appointed by the people of Maryland, would be simple +effrontery; and most certainly, as I have said, if they could not +appoint, they could not give an incontrovertible certificate of +appointment. The certificate is one thing; the appointment another. The +State appoints and the Legislature directs the manner of appointment, +but neither can make true that which is false.</p> + +<p><i>Now as to the person appointed.</i> Brewster was one of the very persons +sought to be excluded by these words of the Constitution: "No Senator or +Representative, or person holding an office of trust or profit under the +United States, shall be appointed an elector." He was, nevertheless, +appointed, and he voted, and his vote made the President. How was this +brought about? The Commission answer, "That it is not competent to prove +that any of said persons so appointed electors as aforesaid held an +office of trust or profit under the United States at the time when they +were appointed." Of course, if it was not competent to prove it, the +fact itself must have been of no importance.</p> + +<p>Bentham's "Book of Fallacies" may be enriched, in another edition, with +another fallacy, as remarkable as any he has recorded, to wit, that +prohibition in the American Constitution means prohibition! Talleyrand +was once asked the meaning of non-intervention. "Non-intervention," he +replied, "non-intervention means about the same thing as intervention." +So, in our new constitutional vocabulary, prohibition means about the +same thing as permission.</p> + +<p>It was, indeed, mentioned in the course of the argument, though the +Commission does not appear to have thought much of it, that Brewster, +having resigned his Federal office, and come in upon a new appointment, +to fill his own vacant place on the 6th of December, being then both +present and absent, the question of eligibility did not arise. But +enough has been said about this resignation sham. If such a trick had<span class='pagenum'><a name="Page_21" id="Page_21">[21]</a></span> +been played in respect to a note-of-hand of five dollars, there is not a +justice of the peace who would not have denounced the trick, as +conferring no right and affording no protection.</p> + +<p>The people of New York were amused, three or four years ago, with the +feats of a juggler, who dressed one side of him as a man, and the other +as a woman, and who turned about so quickly that he showed himself as +two persons of different sexes in the same instant. Brewster's feat was +not less remarkable: he was at once absent and present; absent that he +might be appointed, and present that he might vote; went through the +whole performance in less than an hour, absenting himself that he might +be called in to be present, presenting himself though absent, voting +ballots and signing certificates, showing himself to be as versatile and +as agile as that master of jugglery.</p> + +<p>Upon what theory the Commission held that evidence could not be received +of Brewster's Federal office at the time of his appointment does not +appear. He certainly was in the prohibited category. A marriage between +persons within prohibited degrees is not good, even if consummated. The +prohibited union of two offices in the same person should not be thought +a legal union, simply because it is practised. It has been said, though +the Commission did not say it, that Brewster was at least elector <i>de facto</i>, and his vote was good, whatever may have been his title. Then +why should we trouble ourselves about the returning officer's +certificate? If, as elector <i>de facto</i>, his vote was good, then it was +good without the certificate, and all that the Commission should have +looked into was the <i>fact of voting</i>, without troubling themselves about +the certificate of anybody or any other evidence of title. But, in +truth, the distinctions between officers <i>de facto</i> and officers <i>de jure</i> have no application to the present case, and for this reason, +among others, that two persons cannot hold the same office <i>de facto</i>. +It is of the essence of a <i>de facto</i> possession of office that it should +be exclusive. The Chancellor of New York said, in a judicial opinion, +more than thirty years ago: "When there is but one office there cannot +be an officer <i>de jure</i> and an officer <i>de facto</i> both in possession of +the office at the same time." This is true even when the<span class='pagenum'><a name="Page_22" id="Page_22">[22]</a></span> office is a +continuing one. Who, for instance, can say which of the rival Governors +in Louisiana or South Carolina at this moment is the Governor <i>de facto</i>? In deciding between them, would not all the world pronounce this +the only question, which is Governor <i>de jure</i>? Much more is it true +when the office is temporary, existing but for a moment, even if the +doctrine of a <a name='TC_3'></a><ins class="correction" title="Was 'de-facto'"><i>de facto</i></ins> officer can be applied to such an office at +all. In the present case, Brewster went into the State-House and voted +for Mr. Hayes; at the same instant his rival went into the same +State-House and voted for Mr. Tilden. It is absurd to pronounce +Brewster, under such circumstances, an elector <i>de facto</i>, so as to make +his vote for that reason good against his rival in the Tilden college, +who was as much an elector <i>de facto</i> as was Brewster, and had this +difference in his favor, that he was elected, and was eligible, while +Brewster, the intruder, was not eligible, and was not elected. The only +returns which went to the Electoral Commission were the double ones, +where rival colleges of electors had acted at the same time in the same +State. In those cases, as already observed, the question of a <a name='TC_4'></a><ins class="correction" +title="Was 'de-facto'"><i>de facto</i></ins> +elector could not arise. There was but one case, that of Wisconsin, +where it could have arisen, and in that there was but a single return, +which, of course, did not go to the Commission.</p> + + +<h3><span class="smcap">Conclusion.</span></h3> + +<p>Although these pages have been occupied with the vote of Brewster in the +electoral college, it should not be understood, that the other seven +votes which were counted from that State, and the four votes counted +from Florida, were any better than his. The one here considered had its +peculiarities; the others had theirs. All of them were tainted, and the +counting in of the President <i>de facto</i> was twelve times fraudulent. +What may be the outcome I do not know. That will depend upon the spirit +of this generation and the spirit of those to follow. It is a +consolation to know that the questions will be reviewed by a tribunal +higher than the Electoral Commission, higher even than the two Houses of +Congress-the American people—from whose judgment there is no appeal but +to the final judgment of history.</p> + +<p><span class="smcap">New York</span>, <i>March 28, 1877</i>.</p> + + +<hr style="width: 65%;" /> +<div class="transnote"> +<h3>Transcriber's note<a name="tnotes" id="tnotes"></a></h3> + +<p>Printer +errors have been changed and are listed below. All other +inconsistencies are as in the original.</p> + +<p> +The following changes have been made to the text:</p> + +<p><a href='#TC_1'>Page 4</a>: Was 'contine' (instead of one, and because one in the present instance actually determined the result, I will <b>confine</b> my observations to a single vote. For this purpose let us take one of the votes from Louisiana, that, for)</p> +<p><a href='#TC_2'>Page 7</a>: Was 'recived' (election of November 7, 1876, at which he was a candidate on the Republican electoral ticket, there was <b>received</b> at the Department of the Interior, from the hands of the President, this letter:)</p> +<p><a href='#TC_3'>Page 22</a>: Was 'de-facto' (when the office is temporary, existing but for a moment, even if the doctrine of a <b><i>de facto</i></b> officer can be applied to such an office at all. In the present case, Brewster went into the State-House and voted)</p> +<p><a href='#TC_4'>Page 22</a>: Was 'de-facto' (where rival colleges of electors had acted at the same time in the same State. In those cases, as already observed, the question of a <b><i>de facto</i></b> elector could not arise. There was but one case, that of Wisconsin,)</p> + +</div> + +<div>*** END OF THE PROJECT GUTENBERG EBOOK 30231 ***</div> +</body> +</html> diff --git a/LICENSE.txt b/LICENSE.txt new file mode 100644 index 0000000..6312041 --- /dev/null +++ b/LICENSE.txt @@ -0,0 +1,11 @@ +This eBook, including all associated images, markup, improvements, +metadata, and any other content or labor, has been confirmed to be +in the PUBLIC DOMAIN IN THE UNITED STATES. + +Procedures for determining public domain status are described in +the "Copyright How-To" at https://www.gutenberg.org. + +No investigation has been made concerning possible copyrights in +jurisdictions other than the United States. Anyone seeking to utilize +this eBook outside of the United States should confirm copyright +status under the laws that apply to them. diff --git a/README.md b/README.md new file mode 100644 index 0000000..763ef3c --- /dev/null +++ b/README.md @@ -0,0 +1,2 @@ +Project Gutenberg (https://www.gutenberg.org) public repository for +eBook #30231 (https://www.gutenberg.org/ebooks/30231) diff --git a/old/30231-8.txt b/old/30231-8.txt new file mode 100644 index 0000000..d7e2e86 --- /dev/null +++ b/old/30231-8.txt @@ -0,0 +1,1238 @@ +Project Gutenberg's The Vote That Made the President, 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 Vote That Made the President + +Author: David Dudley Field + +Release Date: October 11, 2009 [EBook #30231] + +Language: English + +Character set encoding: ISO-8859-1 + +*** START OF THIS PROJECT GUTENBERG EBOOK THE VOTE THAT MADE THE PRESIDENT *** + + + + +Produced by Meredith Bach, Carla Foust, and the Online +Distributed Proofreading Team at https://www.pgdp.net (This +book was produced from scanned images of public domain +material from the Google Print project.) + + + + + + + + + + THE VOTE + THAT + MADE THE PRESIDENT. + + BY + DAVID DUDLEY FIELD. + + NEW YORK: + D. APPLETON & COMPANY, + 549 & 551 BROADWAY. + 1877. + + + + +COPYRIGHT BY DAVID DUDLEY FIELD. 1877. + + + + +THE VOTE THAT MADE THE PRESIDENT. + + +At ten minutes past four o'clock on the second morning of the present +month (March, 1877), the President of the Senate of the United States, +in the presence of the two Houses of Congress, made this announcement: +"The whole number of the electors appointed to vote for President and +Vice-President of the United States is 369, of which a majority is 185. +The state of the vote for President of the United States, as delivered +by the tellers, and as determined under the act of Congress, approved +January 29, 1877, on this subject, is: for Rutherford B. Hayes, of Ohio, +185 votes; for Samuel J. Tilden, of New York, 184 votes;" and then, +after mentioning the votes for Vice-President, he proceeded: "Wherefore +I do declare, that Rutherford B. Hayes, of Ohio, having received a +majority of the whole number of electoral votes, is duly elected +President of the United States for four years, commencing on the fourth +day of March, 1877." + +Mr. Hayes was thus declared elected by a majority of one. If any vote +counted for him had been counted on the other side, Mr. Tilden, instead +of Mr. Hayes, would have had the 185 votes; if it had been rejected +altogether, each would have had 184 votes, and the House of +Representatives would immediately have elected Mr. Tilden. One vote, +therefore, put Mr. Hayes into the presidential office. + +To make up the 185 votes counted for him, 8 came from Louisiana and 4 +from Florida. Whether they should have been thus counted is a question +that affects the honor, the conscience, and the interests of the +American people. There is not a person living in this country who has +not a direct concern in a just answer. Not one will ever live in it +whose respect for this generation will not depend in some degree upon +that answer. + +The 12 votes were not all alike. Some had one distinction, some another. +But, not to distract attention by the discussion of several transactions +instead of one, and because one in the present instance actually +determined the result, I will confine my observations to a single vote. +For this purpose let us take one of the votes from Louisiana, that, for +instance, of Orlando H. Brewster. + +Brewster was not appointed an elector, inasmuch as he did not receive a +majority of the votes cast by the people of Louisiana, and inasmuch also +as he could not have been appointed if he had received them all. + + +HE DID NOT RECEIVE A MAJORITY OF THE VOTES. + +It would be a waste of time and patience to go through the testimony +taken by the two Houses of Congress for their own information, before +they consented to call in the advice of the Electoral Commission. The +evidence of wrongs on both sides, and the irreconcilable contradictions +of witnesses, made President Seelye and Mr. Pierce, of Massachusetts, +declare it to be impossible for them to reach a satisfactory conclusion +upon the facts, and compelled them to break away from their party, and +refuse to abide by the advice of the Commission. There are certain +things, however, which we know beyond dispute, or about which there is +and can be no controversy, and these only will I mention. We know that +the number of votes cast in Louisiana for the Tilden electors, taking +the first name on the list as representing all, was 83,723, but that the +certificate of the Returning Board put them at 70,508, turning Mr. +Tilden's majority of more than 6,000 into a majority for Mr. Hayes; and +we know that the reduction was made by throwing out more than 13,000 +votes of legal voters voting legally for Mr. Tilden, and that more than +10,000 of these were thrown out upon the assumed authority of a statute +of Louisiana, which in terms gave the board power to throw out votes, +upon examination and deliberation, "whenever, from any poll or +voting-place, there shall be received the _statement of any supervisor_ +of registration _or commissioner_ of election, in form as required by +section 26 of this act, _on affidavit of three or more citizens_, of any +riot, tumult, acts of violence, intimidation, armed disturbance, +bribery, or corrupt influences, which prevented, or tended to prevent, a +fair, free, and peaceable vote of all qualified electors entitled to +vote at such poll or voting-place." + +Whether the statute itself has its warrant in the Constitution is a +question not necessary now to be considered. For my part, I cannot see +the authority for taking out of the ballot-boxes the ballots of lawful +voters and throwing them away because other voters did not vote, +whatever may have been the cause of their not voting, whether they were +frightened, foolish, or perverse. I cannot for the life of me perceive +that the State can be held to have elected persons whom it did not in +fact elect, because it is conjectured, or even made probable, that if +voters who kept away from the polls had in fact attended and voted, they +would have made a majority for these persons. + +Without going into that question, however, and assuming for the sake of +the argument that the statute had all the authority of the most clearly +valid statute that was ever passed, it is certain that the only ground +upon which a vote could have been thrown out, for intimidation or other +corrupt influence, was the statement of a supervisor of registration or +commissioner of election, founded upon the affidavits of three citizens. +When, however, the vote of Louisiana was before the Electoral +Commission, the following offer was made by counsel: + + "We offer to prove that _the statements and affidavits_ purporting + to have been made and forwarded to said Returning Board in + pursuance of the provisions of section 26, of the election law of + 1872, alleging riot, tumult, intimidation, and violence, at or near + certain polls, and in certain parishes, _were_ falsely fabricated + and _forged_ by certain disreputable persons _under the direction_, + and with the knowledge, _of said Returning Board_, and that said + Returning Board, knowing said statements and affidavits to be false + and forged, and that none of the said statements or affidavits were + made in the manner or form or within the time required by law, did + knowingly, willfully, and fraudulently, fail and refuse to canvass + or compile more than 10,000 votes lawfully cast, as is shown by the + statements of votes of the Commissioners of Election." + +This offer the Commission rejected by a vote of 8 to 7. + +In the Commission Mr. Abbott moved the following: + + "_Resolved_, That testimony tending to show that the so-called + Returning Board of Louisiana had no jurisdiction to canvass the + votes for electors of President and Vice-President is admissible." + +This was rejected by the same vote. + +In explaining the reason of their decision in the case, the Commission +used the following language: + + "And the Commission has, by a majority of votes, decided, and does + hereby decide, that it is not competent, under the Constitution and + the law as it existed at the date of the passage of said act, to go + into evidence _aliunde_, the papers opened by the President of the + Senate, in the presence of the two Houses, to prove that other + persons than those regularly certified to by the Governor of the + State of Louisiana, on and according to the determination and + declaration of their appointment by the returning officers for + elections in the said State prior to the time required for the + performance of their duties, had been appointed electors, or by + counter-proof to show that they had not; or that the determination + of the said returning officers was not in accordance with the truth + and the fact, the Commission, by a majority of votes, being of + opinion that it is not within the jurisdiction of the two Houses of + Congress, assembled to count the votes for President and + Vice-President, to enter upon a trial of such questions." + +Whether, therefore, the decisions of the Commission or the reasons given +for them be sound or unsound, it may be assumed, that _Brewster did not +receive a majority of the votes cast by the people of Louisiana, and +that the action of the Returning Board_ in cutting down the majority of +his competitor, so as to reduce it below his, _was taken without +jurisdiction, and upon the pretense of statements and affidavits which +they themselves had caused to be forged_. + + +BREWSTER COULD NOT HAVE BEEN APPOINTED ELECTOR IF HE HAD RECEIVED THE +VOTES OF ALL THE PEOPLE OF LOUISIANA. + +He had been made Surveyor-General of the United States, for the District +of Louisiana, on the 2d of February, 1874; was recommissioned by +President Grant on the 11th of February, 1875, and is at present +exercising the office. Whether he has ever been out of the office +depends upon the facts now to be mentioned. Eight or nine days after the +election of November 7, 1876, at which he was a candidate on the +Republican electoral ticket, there was received at the Department of the +Interior, from the hands of the President, this letter: + + MONROE, _November 4, 1876_. + + DEAR SIR: I hereby tender my resignation of the office of + Surveyor-General of the State of Louisiana, with the request that + it be accepted immediately. With many thanks for your kindness, + + I remain, yours respectfully, + O. H. BREWSTER. + + U. S. GRANT, _President United States_. + +When the letter was written does not appear. It is certain that Brewster +was acting as Surveyor-General on the 10th of November. + +On the 16th of November a letter was addressed to the Commissioner of +the General Land-Office, as follows: + + DEPARTMENT OF THE INTERIOR,} + WASHINGTON, _November 16, 1876_.} + + SIR: I have received the resignation of Mr. Orlando H. Brewster, + Surveyor-General of Louisiana, which he has requested may take + effect immediately. Please inform Mr. Brewster that his resignation + has been accepted by the President, to take effect November 4th + instant, that being the date of his letter of resignation to this + Department. + + Very respectfully, + Z. CHANDLER, _Secretary_. + +At what time, if ever, the Commissioner informed Brewster of the +acceptance of his resignation we do not know, but it could not have been +earlier than the 20th of November. + +On the morning of the 6th of December, the four men who assumed to act +as the Returning Board of Louisiana filed in the office of the +Secretary of that State a certificate that Brewster, with seven other +persons, had been appointed presidential electors. There was then on the +statute-book of Louisiana this enactment: + + "If any one or more of the electors chosen by the people shall fail + from any cause whatever to attend at the appointed place at the + hour of 4 P.M. of the day prescribed for their meeting, it shall be + the duty of the other electors immediately to proceed by ballot to + fill such vacancy or vacancies." + +What Brewster did is thus told by Kellogg, one of the Hayes electors, on +his examination at Washington in January: + + "_Q._ Did Levissee and Brewster vote at the meeting of electors? + + _A._ I believe they did. + + _Q._ Was not an appointment made for somebody to fill Brewster's + place? + + _A._ I believe that that is the case. + + + _Q._ Who was appointed to fill Brewster's place? + + _A._ Brewster himself. + + _Q._ The same man? + + _A._ The same man. + + + _Q._ Were you also instructed by these committees (National and + Congressional Republican Committees) how to dispose of Brewster + and Levissee? + + _A._ My recollection is that some one of the electors had + received a letter suggesting that in case of a vacancy or in case + of the absence of Levissee and Brewster, they should be chosen in + their own places. That is my recollection. + + + _Q._ And yet they absented themselves from the electoral college, + and you filled their vacancies with themselves? + + _A._ They were absent from the college when the college met, and we + filled their vacancies by themselves." + +Being thus installed, they voted for Mr. Hayes within an hour after they +were chosen to fill their own vacancies; and three days afterward +Brewster addressed the following letter to the President: + + NEW ORLEANS, LOUISIANA, _December 9, 1876._ + + SIR: I respectfully apply to be appointed Surveyor-General for the + District of Louisiana. Commendations from prominent gentlemen will + be submitted to your Excellency to justify the appointment. + + I have the honor to remain + Your very obedient servant, + ORLANDO H. BREWSTER. + + U. S. GRANT, _President United States, Washington, D. C._ + +The reappointment was made on the 5th of January, 1877. The Chief of the +Appointment Division in the Interior Department was asked and testified +about it as follows: + + "_Q._ Who recommended his appointment in January? + + _A._ I think the probability is (although there is no evidence of + it) that there was no recommendation, further than his own + application to the President. + + _Q._ You do not know of any recommendation? + + _A._ I do not know of any. + + _Q._ There is none on file? + + _A._ There is none on file to the best of my knowledge. There is + none on file in the Interior Department." + +Who does not perceive the shallow trick by which Brewster pretended to +have divested himself of his Federal office that he might vote; only to +be reinvested as soon as he had voted? + +The letter of resignation, with its false date, and its pretended +acceptance, to take effect as of a time past, were evident shams to make +it appear that he was not holder of a Federal office when he was +elected; his affecting to be absent on the 6th of December, and coming +in immediately to fill the vacancy occasioned by his own absence, in +order to make it appear that his appointment was made on that 6th of +December, instead of the 7th of November, and his barefaced application +on the third day thereafter to be reappointed to the Federal office, +from which he could not possibly have perfected his resignation before +the 20th of November--all these were but so many contrivances to evade +the highest enactment known to our civil polity. In the eye of reason +and of law, he acted during the whole period under that influence of +office which it was the design of the Constitution to prevent, and he +must have entered more thoroughly into the work of his Federal master +than if he had not gone through the form of resigning, inasmuch as that +placed him, more than before, in his master's power. + +Let us now place side by side the commandment of the Constitution and +the resolution of the Electoral Commission: + + COMMANDMENT. | RESOLUTION. + | + "_No_ Senator or Representative, | "The Commission, by a majority + or _person holding an office of | of votes, is also of the opinion + trust or profit under the United | that _it is not competent to prove + States, shall be appointed an | that any of said persons, so + elector._" | appointed electors_ as aforesaid, + | _held an office of trust or + | profit under the United States + | at the time when they were + | appointed_, or that they were + | ineligible under the laws of the + | State, or any other matter + | offered to be proved _aliunde_ + | the said certificates and + | papers." + +It would be unjust to cast upon the Electoral Commission the blame of +all the wrong that has been practised in this presidential count. The +Commission was but a council of advice, which Congress might have taken +or not, as it pleased, the only condition being that, in order to reject +it, both Houses must have agreed. The responsibility of the final +decision lay, after all, upon Congress, or rather, upon the Senate, +which voted throughout to follow the Commission. + + * * * * * + +The facts thus briefly recited present certain questions--moral, +political, and legal--which cannot be considered too soon for our good +repute and our self-respect. + + +THE MORAL QUESTION. + +Whatever differences of opinion there may be about the political and +legal questions involved, there can be none about the moral. The +presidential office is the gift of the people of the several States, of +their own free-will, expressed according to the laws. A falsification of +that will is an offense against the State where it is committed, and +against all the States. If the falsification is beyond the reach of the +law, it is not beyond the reach of the conscience. A robbery is none the +less a robbery because it is beyond the range of vision or the arm of +justice. If the possessor of an estate has entered through the forgery +of a record or the spoliation of a will, which although believed by +every neighbor is beyond judicial proof, all the world pronounces his +possession fraudulent, even though he scatters his wealth in charities +and gathers many companions around his luxurious table. The example is +corrupting, but it is against the eternal law of justice that the act +should be respected or the actors continue forever to prosper. + +It is no answer to these observations to say that frauds have been +practised on the other side. Unhappily there is too much reason to +believe that neither party is free from practices which are at once a +scourge and a dishonor. Neither has the disgraceful monopoly of such +practices, whichever may have the bad preėminence. But this is certain: +one wrong neither justifies nor palliates another. + +There is no set-off known to the moral law. Because A has defrauded B, +that is no reason why B should defraud A. If it were so, society would +go on forever in a compound ratio of crime. The first breach of the law +would furnish excuse for the second, and their progeny would follow in +sad progression to the end of time. This is not, however, the moral +condition of the world. The _lex talionis_ has been abolished by the law +of civilization and the higher law of the gospel. + +In this case of Louisiana there can be neither excuse nor palliation for +the misconduct of the Returning Board. + +On the 10th of November, President Grant telegraphed to the General of +the Army instructions about troops in Louisiana and Florida, and added +that "_no man worthy of the office of President should be willing to +hold it if counted in or placed there by fraud_. Either party can afford +to be disappointed in the result. _The country cannot afford to have the +result tainted by the suspicion of illegal or false returns._" And +again: "The presence of citizens from other States, I understand, is +requested in Louisiana, to see that the Board of Canvassers makes _a +fair count of the vote actually cast_. It is to be hoped that +representative and fair men of both parties will go." + +Did the President of that day misrepresent his party, or his successor, +or has the party changed and the successor also? Had the virtuous +impulses of November faded away in February? Was there a change of heart +or a change of opportunity? Neither Congress nor the Electoral +Commission could give an _honest_ title, without investigating the +honesty of the transactions on which the title was founded; and yet a +President has been installed, in the face of rejected offers to prove +frauds, the grossest, the most shameless, and the most corrupting, in +all our history. + +Then what was the object of the committees of each House of Congress, +sent into the disputed States? Was it to blind the people? Was it to +conceal a meditated fraud? On the very first day of the session, +December 4th, Mr. Edmunds, in the Senate, moved certain resolutions, of +which this was one: + + "_Resolved further_, That the said committee" (the Committee on + Privileges and Elections) "be, and is hereby, instructed to inquire + into the eligibility to office under the Constitution of the United + States of any persons alleged to have been ineligible on the 7th + day of November last, or to be ineligible as electors of President + and Vice-President of the United States, to whom certificates of + election have been, or shall be, issued by the Executive authority + of any State, as such electors, and _whether the appointment of + electors_, or those claiming to be such, in any of the States, _has + been made either by force, fraud, or other means otherwise than in + conformity with the Constitution and laws of the United States, and + the laws of the respective States_; and whether any such + appointment or action of any such elector has been in any wise + unconstitutionally or unlawfully interfered with; and to inquire + and report whether Congress has any constitutional power, and, if + so, what and the extent thereof, in respect of the appointment of + or action of electors of President and Vice-President of the United + States, or over returns or certificates of votes of such electors," + etc. + +Was all this parade of committees sent hither and thither, summoning +witnesses from far and near, committing the recusant to prison, and +looking into State archives; was all this a mock show, a piece of +pantomime, for the amusement of the lookers-on, while conspirators were +plotting how to conceal what they pretended to be wishing to discover? +Taken all in all, the sounding profession, the bustling search, and the +studied concealment, make a drama, half comedy and half tragedy, the +like of which this generation has not seen till now, but the like of +which it and its successors may see many times, if the audience does not +hiss the play, and remit the actors to the streets. + +It has been objected, as a reason for not receiving offered evidence, +that there was not time to take it before the 4th of March. How was that +known? Perhaps it could have been taken in an hour. Why was not the +question asked, how much time the evidence would take, before it was +excluded? If the certificate was false, and the falsehood was +susceptible of proof, every effort possible should have been made to +receive it, and receive it all. It is not commonly accepted as good +reason for not searching after the truth, that the search may be +difficult. Nor is it an unusual occurrence to require an argument or +decision to be made within a period limited. Ten minutes' speeches in +Congress, two hours' argument in the Supreme Court, a jury shut in a +room until they agree upon a verdict, a court required by statute to +render its decision by a day fixed, are not so strange as to be +remarkable, or found in practice so embarrassing as to cause the +practice to be abandoned. + +Nor is it any answer to say that, if the offer of evidence had been +accepted, the proof would have fallen short of the offer. That does not +lie in the mouth of any one to say, who excluded the evidence, or +justified its exclusion. The characters of the counsel who made the +offer, and of the commissioner who moved its acceptance, are a guarantee +not only of their good faith, but of a reason for their belief. No man +has any right to deny that the proof offered would have been made good, +who refused the opportunity. They who closed their ears should in +decency keep their mouths shut. But it was not the counsel and the +commissioner alone who believed that the proof offered would be made +good. Every one who witnessed the examinations in Washington, every one +who read the testimony taken by the Congressional Committees in +Louisiana, must have been satisfied that the conduct of the Returning +Board was throughout unlawful, wicked, and shocking, to the last degree. + +The title of the acting President, however valid in law, if valid at +all, is tainted with fraud in fact. There was fraud in certifying that +Brewster had received a majority of the votes of Louisiana, and fraud in +attempting to evade that part of the Constitution which pronounced his +disqualification. When the Electoral Commission advised Congress, and +Congress accepted, by not rejecting, the advice, that fraud could not be +proved, that advice being but the equivalent of saying that fraud was of +no consequence; when it advised that the incompetency of the Returning +Board, for want of jurisdiction, could not be proved, such proof being +but the equivalent of proof that the pretended board was not a board at +all; when it advised that the forgery, by direction of the board, of the +statements and affidavits on which it pretended to act as true could not +be proved, that proof being but the equivalent of proof that the +pretended statements and affidavits were not statements and affidavits +at all; when it advised that the barrier raised by the Constitution +against the appointment of a Federal officer to choose a Federal +President, was not a barrier at all--the moral sense of the whole +American people was shocked. No form of words can cover up the +falsehood; no sophistry can hide it; no lapse of time wash it out. It +will follow its contrivers wherever they go, confront them whenever they +turn, and as often as one of them asks the suffrages of his countrymen, +he may expect to hear them reply, "Why do you reason with us, why seek +to persuade us into giving you our votes, you that have taught us such a +contempt for votes, that one fraudulent certificate is better than ten +thousand of them?" + + +THE POLITICAL QUESTION. + +The advice of the Commission, with the consequent action of Congress, +was a virtual affirmation of this proposition, that if on the morning of +the 6th of December the Federal general commanding in Louisiana had +surrounded the State-House with soldiers, and marching in eight of his +captains, had compelled the Returning Board to certify their +appointment as electors, and the Governor to add his certificate, +Congress and the country would have been obliged to accept the votes of +these captains as the constitutional and lawful votes of Louisiana +electors. Whoever supposes that the union of these States can endure +under such an interpretation of their fundamental law, must be endowed +with credulity beyond the simplicity of childhood. The doctrine is an +open invitation to transgression and usurpation. The judicious +disposition of a few troops in the capitals of disputed States, on the +day of the electoral vote, will perpetuate an Administration just so +long as the audacity of a President, or the cupidity of his +office-holders, may find it desirable; unless, indeed, it be found, as +is most likely, that the ways of fraud are cheaper, easier, and less +palpable than the ways of force. + + +THE LEGAL QUESTION. + +_As to the conclusiveness of the Governor's and canvassers' +certificates._ The doctrine of the majority of the Commission, and of +the Senate, is, that the certificate of the Governor "_on and according +to the determination and declaration_" of the State canvassers, cannot +be shown to be false, though it may have been obtained by force or +fraud. This doctrine admits that the truth of the _Governor's_ +certificate can be inquired into, else why the qualification that it +must be "_on and according to_" the canvasser's certificate. It is said +to be good only when in such accord; therefore, when not in accord, it +is good for nothing. We may, then, dismiss the Governor's certificate as +of no account, and to be left therefore out of further discussion. The +substance of the doctrine is, that the _certificate of the State +canvassers_ cannot be contradicted. + +This language must, of course, be understood, as used in reference to +the question at that time depending; that is to say, whether evidence to +contradict or annul the certificate was then and there admissible. It +had already been decided in the Florida case that no action of the State +authorities, after the electors had voted, could affect the validity of +the vote. Whether such action before the vote would have been of any +avail was not decided, and will never be decided, unless a radical +change is made in the laws, since, according to present legislation, the +vote of the electors treads fast on the heels of their appointment. In +Florida, they were declared appointed at three o'clock in the morning, +and they voted at twelve, just nine hours afterward. In Louisiana the +interval was even less. To suppose that any State action would or could +be had in such an interval, or in any interval possible under present +laws, would be as wild as to suppose that counting in a President by +fraud will not be followed by imitators at future elections. + +Taking the doctrine, however, precisely as it was applied in the +instance of Louisiana, it is this: that the certificate of State +canvassers cannot be impeached by evidence showing either that they had +no jurisdiction to canvass the electoral vote at all, or that they had +no jurisdiction to throw away votes that were actually cast, inasmuch as +the power to throw away came into existence only when affidavits were +laid before them, and there were no affidavits except such as they had +caused to be forged, which, in the eye of the law, were not affidavits +at all. + +One would say that such a doctrine, held up in its nakedness, need +hardly be attacked, for no man, not maddened by the fanaticism of party, +would be found willing to defend it; yet if not defended, the +disposition of the Louisiana case must be pronounced as unsound in law +as it was injurious in policy and offensive in morals. But I go further, +and deny the conclusiveness of the canvassers' certificate under any +circumstances. Suppose the question to be put thus: Can the certificate +of State canvassers, acting within the scope of their authority, be +questioned by evidence of mistake, fraud, or duress; what should be the +answer? Most certainly it can, should be answered. + +The statutes of the State may or may not have declared the effect of the +certificate. In the case of Louisiana, this was the only statute +relevant: + + "The returns of the elections thus made and promulgated shall be + _prima-facie_ evidence in all courts of justice and before all + civil officers, until set aside after a contest according to law, + of the right of any person named therein to hold and exercise the + office to which he shall by such return be declared elected." + +Whatever doubt may have been expressed or felt whether this statute +applied to the canvassers of a presidential election, or whether the +words _prima facie_ really meant _prima facie_, or whether "courts of +justice," and "civil officers," included the Electoral Commission and +the two Houses of Congress, there can be no doubt that "the returns of +the elections thus made and promulgated" do not include returns +canvassed without jurisdiction, or made under cover of pretended +affidavits which the returning officers themselves caused to be forged. + +But, passing from this view of the subject, although this is sufficient +to dispose of Brewster's pretensions, let us suppose a stronger +case--the strongest supposable--that of a State Legislature directing +not only the manner in which electors shall be appointed, but directing +also that the certificate of the State canvassers shall be conclusive +evidence that the State has appointed in the manner directed. + +Because the Constitution provides that electors shall be appointed by +the State, in the manner directed by its Legislature, it is thence +inferred that the State must furnish the evidence of the appointment, +and of course that none can be received except that which the State has +furnished. And this is said to be the true States-rights doctrine. It is +a strange sight, that of gentlemen clamoring for State rights who will +not allow the people of Louisiana and South Carolina to take care of +themselves; who are even now debating at Washington whether they shall +not order new elections in those States, or which of two State +governments they shall put up and which put down, and who since the war +have treated the South as if no States were there, parceling it into +military districts, and denying recognition until constitutional +amendments were ratified. Their assertion of the conclusiveness of false +and fraudulent canvassers' certificates, on the pretense of upholding +State rights, should seem to be thrown in our faces by way of bravado, +unless it be meant, indeed, for burlesque masking hypocrisy. But if the +sight were not strange, and those gentlemen had been all along as +careful of the rights of the States as they are of their own places, +there is nothing in the claim for the conclusiveness of canvassers' +certificates which receives support from the doctrine of State rights. +On the contrary, the rights of the States are best preserved by fencing +them against force or fraud, by leaving them untrammeled in their own +action, and leaving us untrammeled in finding out what that action has +been. No rights are ever lost by letting in the light. + +A certificate can be conclusive evidence of the States' action, only +when the act and the certificate are identical. If the Constitution had +provided that there should be sent from each State a certificate signed +by such persons as the Legislature might designate, declaring who should +cast the electoral votes, then the only inquiry that could have been +made at Washington would have been, whether the certificate sent up was +so signed and the persons therein mentioned had voted; but the +Constitution has provided nothing of the kind. It has provided that the +State shall appoint in the manner directed by its Legislature, and the +inquiry thereupon to be made at the Capitol is, "Whom has the State +appointed in the manner directed?" + +We agree that the State has complete power, within certain limits +regarding the persons who may be appointed, to appoint its electors in +any manner its Legislature may direct, but whether the State has done so +is open to inquiry. Canvassers of votes are not the State, or the +Legislature of the State, and their certificate is nothing but evidence. +Two facts are to be shown: one that the State has acted, and the other +that the act has been in conformity to the directions of the +Legislature. There is nothing in positive law, or in the reason of +things, which, if the fact certified do not exist, requires that its +falsity should not be open to proof. + +The Electoral Commission and the Senate read the Constitution as if the +words following in italics were part of it: + + "Each State shall appoint, in such manner as the Legislature + thereof may direct, a number of electors equal to the whole number + of Senators and Representatives to which the State may be entitled + in the Congress; but no Senator or Representative, or person + holding an office of trust or profit under the United States, shall + be appointed an elector." _And the certificate of such officers as + the Legislature of the State may designate shall be conclusive + evidence, not only that the persons certified were appointed by the + State, but that they were appointed in the manner directed by its + Legislature, any mistake, fraud, or duress, of the certifying + officers to the contrary notwithstanding_. + +But the words of the Constitution as they stand do not carry with them +the words in italics, or their substance; and if it had been proposed to +add them when the Constitution was presented to the people, I do not +believe that they would have been accepted. + +Had it been suggested to the freemen of Massachusetts or Connecticut +that they should give to the Legislature of another State not only the +right of designating how the electors should be chosen, whose voices +might make a President for them, but also the right to designate a +permanent board, with power to say, in the face of the truth, who had or +had not been chosen, the voices of John Hancock and Oliver Ellsworth +would surely have warned the good people of their native Commonwealths +against so dangerous a proposition. + +There is no necessary connection between an appointment and the +certificate of it, unless the two acts are performed by the same +persons. If the appointment of electors for Louisiana had been committed +to the Returning Board, then there might be reason for saying that the +certificate was conclusive, because they appointed when they certified. +But the board had not the power of appointment. That power could not +have been given to them, if the Legislature of Louisiana had so +intended, and it did not so intend. + +The power to give a conclusive certificate of appointment--that is, a +certificate that precludes further inquiry--is virtually a power to +appoint, since no one is then permitted to go behind the certificate to +show that there was neither valid appointment nor form of appointment. +Unless, therefore, the Legislature of Louisiana could, under the +Constitution, confer upon the Returning Board power to appoint +presidential electors for Louisiana, it could not confer upon it power +to give a conclusive certificate of appointment. The constitution of +this Returning Board is known to us all. It was a permanent body, +holding for an undefined period, or for life, consisting of four +persons of one party, when there should have been five, of different +parties; and the four had persistently refused for years to select a +fifth. To pretend that such a body was, or could lawfully be, empowered +to appoint eight electors for the people of Louisiana, to match the +eight who were appointed by the people of Maryland, would be simple +effrontery; and most certainly, as I have said, if they could not +appoint, they could not give an incontrovertible certificate of +appointment. The certificate is one thing; the appointment another. The +State appoints and the Legislature directs the manner of appointment, +but neither can make true that which is false. + +_Now as to the person appointed._ Brewster was one of the very persons +sought to be excluded by these words of the Constitution: "No Senator or +Representative, or person holding an office of trust or profit under the +United States, shall be appointed an elector." He was, nevertheless, +appointed, and he voted, and his vote made the President. How was this +brought about? The Commission answer, "That it is not competent to prove +that any of said persons so appointed electors as aforesaid held an +office of trust or profit under the United States at the time when they +were appointed." Of course, if it was not competent to prove it, the +fact itself must have been of no importance. + +Bentham's "Book of Fallacies" may be enriched, in another edition, with +another fallacy, as remarkable as any he has recorded, to wit, that +prohibition in the American Constitution means prohibition! Talleyrand +was once asked the meaning of non-intervention. "Non-intervention," he +replied, "non-intervention means about the same thing as intervention." +So, in our new constitutional vocabulary, prohibition means about the +same thing as permission. + +It was, indeed, mentioned in the course of the argument, though the +Commission does not appear to have thought much of it, that Brewster, +having resigned his Federal office, and come in upon a new appointment, +to fill his own vacant place on the 6th of December, being then both +present and absent, the question of eligibility did not arise. But +enough has been said about this resignation sham. If such a trick had +been played in respect to a note-of-hand of five dollars, there is not a +justice of the peace who would not have denounced the trick, as +conferring no right and affording no protection. + +The people of New York were amused, three or four years ago, with the +feats of a juggler, who dressed one side of him as a man, and the other +as a woman, and who turned about so quickly that he showed himself as +two persons of different sexes in the same instant. Brewster's feat was +not less remarkable: he was at once absent and present; absent that he +might be appointed, and present that he might vote; went through the +whole performance in less than an hour, absenting himself that he might +be called in to be present, presenting himself though absent, voting +ballots and signing certificates, showing himself to be as versatile and +as agile as that master of jugglery. + +Upon what theory the Commission held that evidence could not be +received of Brewster's Federal office at the time of his appointment +does not appear. He certainly was in the prohibited category. A marriage +between persons within prohibited degrees is not good, even if +consummated. The prohibited union of two offices in the same person +should not be thought a legal union, simply because it is practised. It +has been said, though the Commission did not say it, that Brewster was +at least elector _de facto_, and his vote was good, whatever may have +been his title. Then why should we trouble ourselves about the returning +officer's certificate? If, as elector _de facto_, his vote was good, +then it was good without the certificate, and all that the Commission +should have looked into was the _fact of voting_, without troubling +themselves about the certificate of anybody or any other evidence of +title. But, in truth, the distinctions between officers _de facto_ and +officers _de jure_ have no application to the present case, and for this +reason, among others, that two persons cannot hold the same office _de +facto_. It is of the essence of a _de facto_ possession of office that +it should be exclusive. The Chancellor of New York said, in a judicial +opinion, more than thirty years ago: "When there is but one office there +cannot be an officer _de jure_ and an officer _de facto_ both in +possession of the office at the same time." This is true even when the +office is a continuing one. Who, for instance, can say which of the +rival Governors in Louisiana or South Carolina at this moment is the +Governor _de facto_? In deciding between them, would not all the world +pronounce this the only question, which is Governor _de jure_? Much more +is it true when the office is temporary, existing but for a moment, even +if the doctrine of a _de facto_ officer can be applied to such an office +at all. In the present case, Brewster went into the State-House and +voted for Mr. Hayes; at the same instant his rival went into the same +State-House and voted for Mr. Tilden. It is absurd to pronounce +Brewster, under such circumstances, an elector _de facto_, so as to make +his vote for that reason good against his rival in the Tilden college, +who was as much an elector _de facto_ as was Brewster, and had this +difference in his favor, that he was elected, and was eligible, while +Brewster, the intruder, was not eligible, and was not elected. The only +returns which went to the Electoral Commission were the double ones, +where rival colleges of electors had acted at the same time in the same +State. In those cases, as already observed, the question of a _de facto_ +elector could not arise. There was but one case, that of Wisconsin, +where it could have arisen, and in that there was but a single return, +which, of course, did not go to the Commission. + + +CONCLUSION. + +Although these pages have been occupied with the vote of Brewster in the +electoral college, it should not be understood, that the other seven +votes which were counted from that State, and the four votes counted +from Florida, were any better than his. The one here considered had its +peculiarities; the others had theirs. All of them were tainted, and the +counting in of the President _de facto_ was twelve times fraudulent. +What may be the outcome I do not know. That will depend upon the spirit +of this generation and the spirit of those to follow. It is a +consolation to know that the questions will be reviewed by a tribunal +higher than the Electoral Commission, higher even than the two Houses of +Congress-the American people--from whose judgment there is no appeal but +to the final judgment of history. + +NEW YORK, _March 28, 1877_. + + * * * * * + + +Transcriber's note + + +The following changes have been made to the text: + +Page 4: "contine" changed to "confine". + +Page 7: "recived" changed to "received". + +Page 22: "de-facto" changed to "de facto". + + +All other inconsistencies are as in the original. + + + + + + +End of the Project Gutenberg EBook of The Vote That Made the President, by +David Dudley Field + +*** END OF THIS PROJECT GUTENBERG EBOOK THE VOTE THAT MADE THE PRESIDENT *** + +***** This file should be named 30231-8.txt or 30231-8.zip ***** +This and all associated files of various formats will be found in: + https://www.gutenberg.org/3/0/2/3/30231/ + +Produced by Meredith Bach, Carla Foust, and the Online +Distributed Proofreading Team at https://www.pgdp.net (This +book was produced from scanned images of public domain +material from the Google Print project.) + + +Updated editions will replace the previous one--the old editions +will be renamed. + +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 Vote That Made the President + +Author: David Dudley Field + +Release Date: October 11, 2009 [EBook #30231] + +Language: English + +Character set encoding: ISO-8859-1 + +*** START OF THIS PROJECT GUTENBERG EBOOK THE VOTE THAT MADE THE PRESIDENT *** + + + + +Produced by Meredith Bach, Carla Foust, and the Online +Distributed Proofreading Team at https://www.pgdp.net (This +book was produced from scanned images of public domain +material from the Google Print project.) + + + + + + +</pre> + + + +<h1>THE VOTE<br /> +THAT<br /> +MADE THE PRESIDENT.</h1> + +<p><br /></p> +<p class="fm4">BY</p> +<p class="fm2">DAVID DUDLEY FIELD.</p> + +<p><br /></p> +<p class="fm2">NEW YORK:<br /> +D. APPLETON & COMPANY,</p> +<p class="fm3">549 & 551 BROADWAY.<br /> +1877.</p> + + + +<hr style="width: 65%;" /> +<p class="fm4"><span class="smcap">Copyright by</span> DAVID DUDLEY FIELD. 1877.</p> + + + +<hr style="width: 65%;" /> +<p><span class='pagenum'><a name="Page_3" id="Page_3">[3]</a></span></p> +<h2><a name="THE_VOTE_THAT_MADE_THE_PRESIDENT" id="THE_VOTE_THAT_MADE_THE_PRESIDENT"></a>THE VOTE THAT MADE THE PRESIDENT.</h2> + + +<p>At ten minutes past four o'clock on the second morning of the present +month (March, 1877), the President of the Senate of the United States, +in the presence of the two Houses of Congress, made this announcement: +"The whole number of the electors appointed to vote for President and +Vice-President of the United States is 369, of which a majority is 185. +The state of the vote for President of the United States, as delivered +by the tellers, and as determined under the act of Congress, approved +January 29, 1877, on this subject, is: for Rutherford B. Hayes, of Ohio, +185 votes; for Samuel J. Tilden, of New York, 184 votes;" and then, +after mentioning the votes for Vice-President, he proceeded: "Wherefore +I do declare, that Rutherford B. Hayes, of Ohio, having received a +majority of the whole number of electoral votes, is duly elected +President of the United States for four years, commencing on the fourth +day of March, 1877."</p> + +<p>Mr. Hayes was thus declared elected by a majority of one. If any vote +counted for him had been counted on the other side, Mr. Tilden, instead +of Mr. Hayes, would have had the 185 votes; if it had been rejected +altogether, each would have had 184 votes, and the House of +Representatives would immediately have elected Mr. Tilden. One vote, +therefore, put Mr. Hayes into the presidential office.<span class='pagenum'><a name="Page_4" id="Page_4">[4]</a></span></p> + +<p>To make up the 185 votes counted for him, 8 came from Louisiana and 4 +from Florida. Whether they should have been thus counted is a question +that affects the honor, the conscience, and the interests of the +American people. There is not a person living in this country who has +not a direct concern in a just answer. Not one will ever live in it +whose respect for this generation will not depend in some degree upon +that answer.</p> + +<p>The 12 votes were not all alike. Some had one distinction, some another. +But, not to distract attention by the discussion of several transactions +instead of one, and because one in the present instance actually +determined the result, I will <a name='TC_1'></a><ins class="correction" title="Was 'contine'">confine</ins> my observations to a single vote. +For this purpose let us take one of the votes from Louisiana, that, for +instance, of Orlando H. Brewster.</p> + +<p>Brewster was not appointed an elector, inasmuch as he did not receive a +majority of the votes cast by the people of Louisiana, and inasmuch also +as he could not have been appointed if he had received them all.</p> + + +<h3><span class="smcap">He did not receive a Majority of the Votes.</span></h3> + +<p>It would be a waste of time and patience to go through the testimony +taken by the two Houses of Congress for their own information, before +they consented to call in the advice of the Electoral Commission. The +evidence of wrongs on both sides, and the irreconcilable contradictions +of witnesses, made President Seelye and Mr. Pierce, of Massachusetts, +declare it to be impossible for them to reach a satisfactory conclusion +upon the facts, and compelled them to break away from their party, and +refuse to abide by the advice of the Commission. There are certain +things, however, which we know beyond dispute, or about which there is +and can be no controversy, and these only will I mention. We know that +the number of votes cast in Louisiana for the Tilden electors, taking +the first name on the list as representing all, was 83,723, but that the +certificate of the Returning Board put them at 70,508, turning Mr. +Tilden's majority of more than 6,000 into a majority for Mr. Hayes; and +we know that the reduction was made by throwing out more than 13,000 +votes of legal voters<span class='pagenum'><a name="Page_5" id="Page_5">[5]</a></span> voting legally for Mr. Tilden, and that more than +10,000 of these were thrown out upon the assumed authority of a statute +of Louisiana, which in terms gave the board power to throw out votes, +upon examination and deliberation, "whenever, from any poll or +voting-place, there shall be received the <i>statement of any supervisor</i> +of registration <i>or commissioner</i> of election, in form as required by +section 26 of this act, <i>on affidavit of three or more citizens</i>, of any +riot, tumult, acts of violence, intimidation, armed disturbance, +bribery, or corrupt influences, which prevented, or tended to prevent, a +fair, free, and peaceable vote of all qualified electors entitled to +vote at such poll or voting-place."</p> + +<p>Whether the statute itself has its warrant in the Constitution is a +question not necessary now to be considered. For my part, I cannot see +the authority for taking out of the ballot-boxes the ballots of lawful +voters and throwing them away because other voters did not vote, +whatever may have been the cause of their not voting, whether they were +frightened, foolish, or perverse. I cannot for the life of me perceive +that the State can be held to have elected persons whom it did not in +fact elect, because it is conjectured, or even made probable, that if +voters who kept away from the polls had in fact attended and voted, they +would have made a majority for these persons.</p> + +<p>Without going into that question, however, and assuming for the sake of +the argument that the statute had all the authority of the most clearly +valid statute that was ever passed, it is certain that the only ground +upon which a vote could have been thrown out, for intimidation or other +corrupt influence, was the statement of a supervisor of registration or +commissioner of election, founded upon the affidavits of three citizens. +When, however, the vote of Louisiana was before the Electoral +Commission, the following offer was made by counsel:</p> + +<div class="blockquot"><p>"We offer to prove that <i>the statements and affidavits</i> purporting +to have been made and forwarded to said Returning Board in +pursuance of the provisions of section 26, of the election law of +1872, alleging riot, tumult, intimidation, and violence, at or near +certain polls, and in certain parishes, <i>were</i> falsely fabricated +and <i>forged</i> by certain disreputable persons <i>under the direction</i>, +and with the knowledge, <i>of said Returning Board</i>,<span class='pagenum'><a name="Page_6" id="Page_6">[6]</a></span> and that said +Returning Board, knowing said statements and affidavits to be false +and forged, and that none of the said statements or affidavits were +made in the manner or form or within the time required by law, did +knowingly, willfully, and fraudulently, fail and refuse to canvass +or compile more than 10,000 votes lawfully cast, as is shown by the +statements of votes of the Commissioners of Election."</p></div> + +<p>This offer the Commission rejected by a vote of 8 to 7.</p> + +<p>In the Commission Mr. Abbott moved the following:</p> + +<div class="blockquot"><p>"<i>Resolved</i>, That testimony tending to show that the so-called +Returning Board of Louisiana had no jurisdiction to canvass the +votes for electors of President and Vice-President is admissible."</p></div> + +<p>This was rejected by the same vote.</p> + +<p>In explaining the reason of their decision in the case, the Commission +used the following language:</p> + +<div class="blockquot"><p>"And the Commission has, by a majority of votes, decided, and does +hereby decide, that it is not competent, under the Constitution and +the law as it existed at the date of the passage of said act, to go +into evidence <i>aliunde</i>, the papers opened by the President of the +Senate, in the presence of the two Houses, to prove that other +persons than those regularly certified to by the Governor of the +State of Louisiana, on and according to the determination and +declaration of their appointment by the returning officers for +elections in the said State prior to the time required for the +performance of their duties, had been appointed electors, or by +counter-proof to show that they had not; or that the determination +of the said returning officers was not in accordance with the truth +and the fact, the Commission, by a majority of votes, being of +opinion that it is not within the jurisdiction of the two Houses of +Congress, assembled to count the votes for President and +Vice-President, to enter upon a trial of such questions."</p></div> + +<p>Whether, therefore, the decisions of the Commission or the reasons given +for them be sound or unsound, it may be assumed, that <i>Brewster did not +receive a majority of the votes cast by the people of Louisiana, and +that the action of the Returning Board</i> in cutting down the majority of +his competitor, so as to reduce it below his, <i>was taken without +jurisdiction, and upon the pretense of statements and affidavits which +they themselves had caused to be forged</i>.<span class='pagenum'><a name="Page_7" id="Page_7">[7]</a></span></p> + + +<h3><span class="smcap">Brewster could not have been appointed Elector if he had received the +Votes of all the People of Louisiana.</span></h3> + +<p>He had been made Surveyor-General of the United States, for the District +of Louisiana, on the 2d of February, 1874; was recommissioned by +President Grant on the 11th of February, 1875, and is at present +exercising the office. Whether he has ever been out of the office +depends upon the facts now to be mentioned. Eight or nine days after the +election of November 7, 1876, at which he was a candidate on the +Republican electoral ticket, there was <a name='TC_2'></a><ins class="correction" title="Was 'recived'">received</ins> at the Department of the +Interior, from the hands of the President, this letter:</p> + +<div class="blockquot"><p class="author"><span class="smcap">Monroe</span>, <i>November 4, 1876</i>.</p> + +<p><span class="smcap">Dear Sir</span>: I hereby tender my resignation of the office of +Surveyor-General of the State of Louisiana, with the request that +it be accepted immediately. With many thanks for your kindness,</p> + +<p class="author"> +I remain, yours respectfully,<br /> +<span class="smcap">O. H. Brewster</span>.</p> +<p><span class="smcap">U. S. Grant</span>, <i>President United States</i>.<br /> +</p> + +</div> + +<p>When the letter was written does not appear. It is certain that Brewster +was acting as Surveyor-General on the 10th of November.</p> + +<p>On the 16th of November a letter was addressed to the Commissioner of +the General Land-Office, as follows:</p> + +<div class="blockquot"> +<table border="0" cellpadding="0" cellspacing="0" summary="Interior"> +<colgroup span="3"> +<col width="150"></col> +<col align="right"></col> +</colgroup> + <tr><td> </td><td align="right" class="tdright"><span class="smcap">Department of the Interior</span>,<br /> + <span class="smcap">Washington</span>, <i>November 16, 1876</i>.</td> + <td valign="middle" align="left" style="white-space: nowrap; font-size: 40pt"> + }</td> +</tr> +</table> + +<p><span class="smcap">Sir:</span> I have received the resignation of Mr. Orlando H. Brewster, +Surveyor-General of Louisiana, which he has requested may take +effect immediately. Please inform Mr. Brewster that his resignation +has been accepted by the President, to take effect November 4th +instant, that being the date of his letter of resignation to this +Department.</p> + +<p class="author"> +Very respectfully,<br /> +<span class="smcap">Z. Chandler</span>, <i>Secretary</i>.</p> +</div> + +<p>At what time, if ever, the Commissioner informed Brewster of the +acceptance of his resignation we do not know, but it could not have been +earlier than the 20th of November.</p> + +<p>On the morning of the 6th of December, the four men who assumed to act +as the Returning Board of Louisiana filed<span class='pagenum'><a name="Page_8" id="Page_8">[8]</a></span> in the office of the +Secretary of that State a certificate that Brewster, with seven other +persons, had been appointed presidential electors. There was then on the +statute-book of Louisiana this enactment:</p> + +<div class="blockquot"><p>"If any one or more of the electors chosen by the people shall fail +from any cause whatever to attend at the appointed place at the +hour of 4 <span class="smcap">p.m.</span> of the day prescribed for their meeting, it shall be +the duty of the other electors immediately to proceed by ballot to +fill such vacancy or vacancies."</p></div> + + +<p>What Brewster did is thus told by Kellogg, one of the Hayes electors, on +his examination at Washington in January:</p> + +<div class="blockquot"><p>"<i>Q.</i> Did Levissee and Brewster vote at the meeting of electors?<br /> +<i>A.</i> I believe they did.<br /> +<i>Q.</i> Was not an appointment made for +somebody to fill Brewster's place?<br /> +<i>A.</i> I believe that that is the +case.</p> + +<p><i>Q.</i> Who was appointed to fill Brewster's place?<br /> +<i>A.</i> Brewster himself.<br /> +<i>Q.</i> The same man?<br /> +<i>A.</i> The same man.</p> + +<p><i>Q.</i> Were you also instructed by these committees (National and +Congressional Republican Committees) how to dispose of Brewster and +Levissee?<br /> +<i>A.</i> My recollection is that some one of the electors had +received a letter suggesting that in case of a vacancy or in case +of the absence of Levissee and Brewster, they should be chosen in +their own places. That is my recollection.</p> + +<p><i>Q.</i> And yet they absented themselves from the electoral college, +and you filled their vacancies with themselves?<br /> +<i>A.</i> They were +absent from the college when the college met, and we filled their +vacancies by themselves."</p></div> + +<p>Being thus installed, they voted for Mr. Hayes within an hour after they +were chosen to fill their own vacancies; and three days afterward +Brewster addressed the following letter to the President:<span class='pagenum'><a name="Page_9" id="Page_9">[9]</a></span></p> + +<div class="blockquot"><p class="author"><span class="smcap">New Orleans, Louisiana</span>, <i>December 9, 1876.</i></p> + +<p><span class="smcap">Sir:</span> I respectfully apply to be appointed Surveyor-General for the +District of Louisiana. Commendations from prominent gentlemen will +be submitted to your Excellency to justify the appointment.</p> + +<p class="author"> +I have the honor to remain<br /> +Your very obedient servant,<br /> +<span class="smcap">Orlando H. Brewster.</span></p> +<p><span class="smcap">U. S. Grant</span>, <i>President United States, Washington, D. C.</i><br /> +</p> + +</div> + +<p>The reappointment was made on the 5th of January, 1877. The Chief of the +Appointment Division in the Interior Department was asked and testified +about it as follows:</p> + +<div class="blockquot"><p>"<i>Q.</i> Who recommended his appointment in January?<br /> +<i>A.</i> I think the +probability is (although there is no evidence of it) that there was +no recommendation, further than his own application to the +President.<br /> +<i>Q.</i> You do not know of any recommendation?<br /> +<i>A.</i> I do +not know of any.<br /> +<i>Q.</i> There is none on file?<br /> +<i>A.</i> There is none on +file to the best of my knowledge. There is none on file in the +Interior Department."</p></div> + +<p>Who does not perceive the shallow trick by which Brewster pretended to +have divested himself of his Federal office that he might vote; only to +be reinvested as soon as he had voted?</p> + +<p>The letter of resignation, with its false date, and its pretended +acceptance, to take effect as of a time past, were evident shams to make +it appear that he was not holder of a Federal office when he was +elected; his affecting to be absent on the 6th of December, and coming +in immediately to fill the vacancy occasioned by his own absence, in +order to make it appear that his appointment was made on that 6th of +December, instead of the 7th of November, and his barefaced application +on the third day thereafter to be reappointed to the Federal office, +from which he could not possibly have perfected his resignation before +the 20th of November—all these were but so many contrivances to evade +the highest enactment known to our civil polity. In the eye of reason +and of law, he acted during the whole period under that influence of +office which it was the design of the Constitution to prevent, and he<span class='pagenum'><a name="Page_10" id="Page_10">[10]</a></span> +must have entered more thoroughly into the work of his Federal master +than if he had not gone through the form of resigning, inasmuch as that +placed him, more than before, in his master's power.</p> + +<p>Let us now place side by side the commandment of the Constitution and +the resolution of the Electoral Commission:</p> + +<table summary="COMMANDMENT"> +<tr> +<td class="tdc">COMMANDMENT.</td> +<td class="tdl"> </td> +<td class="tdc">RESOLUTION.</td> +</tr> +<tr> +<td class="tdl">"<i>No</i> Senator or Representative,</td> +<td class="tdl"> </td> +<td class="tdl">"The Commission by a majority</td> +</tr> +<tr> +<td class="tdl">or <i>person holding an office of trust</i></td> +<td class="tdl"> </td> +<td class="tdl">of votes, is also of the opinion that</td> +</tr> +<tr> +<td class="tdl"><i>or profit under the United States,</i></td> +<td class="tdl"> </td> +<td class="tdl"><i>it is not competent to prove that any</i></td> +</tr> +<tr> +<td class="tdl"><i>shall be appointed an elector.</i>"</td> +<td class="tdl"> </td> +<td class="tdl"><i>of said persons, so appointed electors</i></td> +</tr> +<tr> +<td class="tdl"> </td> +<td class="tdl"> </td> +<td class="tdl">as aforesaid, <i>held an office of trust or</i></td> +</tr> +<tr> +<td class="tdl"> </td> +<td class="tdl"> </td> +<td class="tdl"><i>profit under the United States at the</i></td> +</tr> +<tr> +<td class="tdl"> </td> +<td class="tdl"> </td> +<td class="tdl"><i>time when they were appointed</i>, or</td> +</tr> +<tr> +<td class="tdl"> </td> +<td class="tdl"> </td> +<td class="tdl">that they were ineligible under the</td> +</tr> +<tr> +<td class="tdl"> </td> +<td class="tdl"> </td> +<td class="tdl">laws of the State, or any other matter</td> +</tr> +<tr> +<td class="tdl"> </td> +<td class="tdl"> </td> +<td class="tdl">offered to be proved <i>aliunde</i> the</td> +</tr> +<tr> +<td class="tdl"> </td> +<td class="tdl"> </td> +<td class="tdl">said certificates and papers."</td> +</tr> +</table> + + +<p>It would be unjust to cast upon the Electoral Commission the blame of +all the wrong that has been practised in this presidential count. The +Commission was but a council of advice, which Congress might have taken +or not, as it pleased, the only condition being that, in order to reject +it, both Houses must have agreed. The responsibility of the final +decision lay, after all, upon Congress, or rather, upon the Senate, +which voted throughout to follow the Commission.</p> + +<hr style="width: 45%;" /> + +<p>The facts thus briefly recited present certain questions—moral, +political, and legal—which cannot be considered too soon for our good +repute and our self-respect.</p> + + +<h3><span class="smcap">The Moral Question.</span></h3> + +<p>Whatever differences of opinion there may be about the political and +legal questions involved, there can be none about the moral. The +presidential office is the gift of the people of the several States, of +their own free-will, expressed according to the laws. A falsification of +that will is an offense against the State where it is committed, and +against all the<span class='pagenum'><a name="Page_11" id="Page_11">[11]</a></span> States. If the falsification is beyond the reach of the +law, it is not beyond the reach of the conscience. A robbery is none the +less a robbery because it is beyond the range of vision or the arm of +justice. If the possessor of an estate has entered through the forgery +of a record or the spoliation of a will, which although believed by +every neighbor is beyond judicial proof, all the world pronounces his +possession fraudulent, even though he scatters his wealth in charities +and gathers many companions around his luxurious table. The example is +corrupting, but it is against the eternal law of justice that the act +should be respected or the actors continue forever to prosper.</p> + +<p>It is no answer to these observations to say that frauds have been +practised on the other side. Unhappily there is too much reason to +believe that neither party is free from practices which are at once a +scourge and a dishonor. Neither has the disgraceful monopoly of such +practices, whichever may have the bad preëminence. But this is certain: +one wrong neither justifies nor palliates another.</p> + +<p>There is no set-off known to the moral law. Because A has defrauded B, +that is no reason why B should defraud A. If it were so, society would +go on forever in a compound ratio of crime. The first breach of the law +would furnish excuse for the second, and their progeny would follow in +sad progression to the end of time. This is not, however, the moral +condition of the world. The <i>lex talionis</i> has been abolished by the law +of civilization and the higher law of the gospel.</p> + +<p>In this case of Louisiana there can be neither excuse nor palliation for +the misconduct of the Returning Board.</p> + +<p>On the 10th of November, President Grant telegraphed to the General of +the Army instructions about troops in Louisiana and Florida, and added +that "<i>no man worthy of the office of President should be willing to +hold it if counted in or placed there by fraud</i>. Either party can afford +to be disappointed in the result. <i>The country cannot afford to have the +result tainted by the suspicion of illegal or false returns.</i>" And +again: "The presence of citizens from other States, I understand, is +requested in Louisiana, to see that the Board of Canvassers makes <i>a +fair count of the vote actually cast</i>. It<span class='pagenum'><a name="Page_12" id="Page_12">[12]</a></span> is to be hoped that +representative and fair men of both parties will go."</p> + +<p>Did the President of that day misrepresent his party, or his successor, +or has the party changed and the successor also? Had the virtuous +impulses of November faded away in February? Was there a change of heart +or a change of opportunity? Neither Congress nor the Electoral +Commission could give an <i>honest</i> title, without investigating the +honesty of the transactions on which the title was founded; and yet a +President has been installed, in the face of rejected offers to prove +frauds, the grossest, the most shameless, and the most corrupting, in +all our history.</p> + +<p>Then what was the object of the committees of each House of Congress, +sent into the disputed States? Was it to blind the people? Was it to +conceal a meditated fraud? On the very first day of the session, +December 4th, Mr. Edmunds, in the Senate, moved certain resolutions, of +which this was one:</p> + +<div class="blockquot"><p>"<i>Resolved further</i>, That the said committee" (the Committee on +Privileges and Elections) "be, and is hereby, instructed to inquire +into the eligibility to office under the Constitution of the United +States of any persons alleged to have been ineligible on the 7th +day of November last, or to be ineligible as electors of President +and Vice-President of the United States, to whom certificates of +election have been, or shall be, issued by the Executive authority +of any State, as such electors, and <i>whether the appointment of +electors</i>, or those claiming to be such, in any of the States, <i>has +been made either by force, fraud, or other means otherwise than in +conformity with the Constitution and laws of the United States, and +the laws of the respective States</i>; and whether any such +appointment or action of any such elector has been in any wise +unconstitutionally or unlawfully interfered with; and to inquire +and report whether Congress has any constitutional power, and, if +so, what and the extent thereof, in respect of the appointment of +or action of electors of President and Vice-President of the United +States, or over returns or certificates of votes of such electors," +etc.</p></div> + +<p>Was all this parade of committees sent hither and thither, summoning +witnesses from far and near, committing the recusant to prison, and +looking into State archives; was all this a mock show, a piece of +pantomime, for the amusement of the lookers-on, while conspirators were +plotting how to conceal<span class='pagenum'><a name="Page_13" id="Page_13">[13]</a></span> what they pretended to be wishing to discover? +Taken all in all, the sounding profession, the bustling search, and the +studied concealment, make a drama, half comedy and half tragedy, the +like of which this generation has not seen till now, but the like of +which it and its successors may see many times, if the audience does not +hiss the play, and remit the actors to the streets.</p> + +<p>It has been objected, as a reason for not receiving offered evidence, +that there was not time to take it before the 4th of March. How was that +known? Perhaps it could have been taken in an hour. Why was not the +question asked, how much time the evidence would take, before it was +excluded? If the certificate was false, and the falsehood was +susceptible of proof, every effort possible should have been made to +receive it, and receive it all. It is not commonly accepted as good +reason for not searching after the truth, that the search may be +difficult. Nor is it an unusual occurrence to require an argument or +decision to be made within a period limited. Ten minutes' speeches in +Congress, two hours' argument in the Supreme Court, a jury shut in a +room until they agree upon a verdict, a court required by statute to +render its decision by a day fixed, are not so strange as to be +remarkable, or found in practice so embarrassing as to cause the +practice to be abandoned.</p> + +<p>Nor is it any answer to say that, if the offer of evidence had been +accepted, the proof would have fallen short of the offer. That does not +lie in the mouth of any one to say, who excluded the evidence, or +justified its exclusion. The characters of the counsel who made the +offer, and of the commissioner who moved its acceptance, are a guarantee +not only of their good faith, but of a reason for their belief. No man +has any right to deny that the proof offered would have been made good, +who refused the opportunity. They who closed their ears should in +decency keep their mouths shut. But it was not the counsel and the +commissioner alone who believed that the proof offered would be made +good. Every one who witnessed the examinations in Washington, every one +who read the testimony taken by the Congressional Committees in +Louisiana, must have been satisfied that the conduct of the<span class='pagenum'><a name="Page_14" id="Page_14">[14]</a></span> Returning +Board was throughout unlawful, wicked, and shocking, to the last degree.</p> + +<p>The title of the acting President, however valid in law, if valid at +all, is tainted with fraud in fact. There was fraud in certifying that +Brewster had received a majority of the votes of Louisiana, and fraud in +attempting to evade that part of the Constitution which pronounced his +disqualification. When the Electoral Commission advised Congress, and +Congress accepted, by not rejecting, the advice, that fraud could not be +proved, that advice being but the equivalent of saying that fraud was of +no consequence; when it advised that the incompetency of the Returning +Board, for want of jurisdiction, could not be proved, such proof being +but the equivalent of proof that the pretended board was not a board at +all; when it advised that the forgery, by direction of the board, of the +statements and affidavits on which it pretended to act as true could not +be proved, that proof being but the equivalent of proof that the +pretended statements and affidavits were not statements and affidavits +at all; when it advised that the barrier raised by the Constitution +against the appointment of a Federal officer to choose a Federal +President, was not a barrier at all—the moral sense of the whole +American people was shocked. No form of words can cover up the +falsehood; no sophistry can hide it; no lapse of time wash it out. It +will follow its contrivers wherever they go, confront them whenever they +turn, and as often as one of them asks the suffrages of his countrymen, +he may expect to hear them reply, "Why do you reason with us, why seek +to persuade us into giving you our votes, you that have taught us such a +contempt for votes, that one fraudulent certificate is better than ten +thousand of them?"</p> + + +<h3><span class="smcap">The Political Question.</span></h3> + +<p>The advice of the Commission, with the consequent action of Congress, +was a virtual affirmation of this proposition, that if on the morning of +the 6th of December the Federal general commanding in Louisiana had +surrounded the State-House with soldiers, and marching in eight of his +captains,<span class='pagenum'><a name="Page_15" id="Page_15">[15]</a></span> had compelled the Returning Board to certify their +appointment as electors, and the Governor to add his certificate, +Congress and the country would have been obliged to accept the votes of +these captains as the constitutional and lawful votes of Louisiana +electors. Whoever supposes that the union of these States can endure +under such an interpretation of their fundamental law, must be endowed +with credulity beyond the simplicity of childhood. The doctrine is an +open invitation to transgression and usurpation. The judicious +disposition of a few troops in the capitals of disputed States, on the +day of the electoral vote, will perpetuate an Administration just so +long as the audacity of a President, or the cupidity of his +office-holders, may find it desirable; unless, indeed, it be found, as +is most likely, that the ways of fraud are cheaper, easier, and less +palpable than the ways of force.</p> + + +<h3><span class="smcap">The Legal Question.</span></h3> + +<p><i>As to the conclusiveness of the Governor's and canvassers' +certificates.</i> The doctrine of the majority of the Commission, and of +the Senate, is, that the certificate of the Governor "<i>on and according +to the determination and declaration</i>" of the State canvassers, cannot +be shown to be false, though it may have been obtained by force or +fraud. This doctrine admits that the truth of the <i>Governor's</i> +certificate can be inquired into, else why the qualification that it +must be "<i>on and according to</i>" the canvasser's certificate. It is said +to be good only when in such accord; therefore, when not in accord, it +is good for nothing. We may, then, dismiss the Governor's certificate as +of no account, and to be left therefore out of further discussion. The +substance of the doctrine is, that the <i>certificate of the State +canvassers</i> cannot be contradicted.</p> + +<p>This language must, of course, be understood, as used in reference to +the question at that time depending; that is to say, whether evidence to +contradict or annul the certificate was then and there admissible. It +had already been decided in the Florida case that no action of the State +authorities, after the electors had voted, could affect the validity of +the vote. Whether such action before the vote would have been of any<span class='pagenum'><a name="Page_16" id="Page_16">[16]</a></span> +avail was not decided, and will never be decided, unless a radical +change is made in the laws, since, according to present legislation, the +vote of the electors treads fast on the heels of their appointment. In +Florida, they were declared appointed at three o'clock in the morning, +and they voted at twelve, just nine hours afterward. In Louisiana the +interval was even less. To suppose that any State action would or could +be had in such an interval, or in any interval possible under present +laws, would be as wild as to suppose that counting in a President by +fraud will not be followed by imitators at future elections.</p> + +<p>Taking the doctrine, however, precisely as it was applied in the +instance of Louisiana, it is this: that the certificate of State +canvassers cannot be impeached by evidence showing either that they had +no jurisdiction to canvass the electoral vote at all, or that they had +no jurisdiction to throw away votes that were actually cast, inasmuch as +the power to throw away came into existence only when affidavits were +laid before them, and there were no affidavits except such as they had +caused to be forged, which, in the eye of the law, were not affidavits +at all.</p> + +<p>One would say that such a doctrine, held up in its nakedness, need +hardly be attacked, for no man, not maddened by the fanaticism of party, +would be found willing to defend it; yet if not defended, the +disposition of the Louisiana case must be pronounced as unsound in law +as it was injurious in policy and offensive in morals. But I go further, +and deny the conclusiveness of the canvassers' certificate under any +circumstances. Suppose the question to be put thus: Can the certificate +of State canvassers, acting within the scope of their authority, be +questioned by evidence of mistake, fraud, or duress; what should be the +answer? Most certainly it can, should be answered.</p> + +<p>The statutes of the State may or may not have declared the effect of the +certificate. In the case of Louisiana, this was the only statute +relevant:</p> + +<div class="blockquot"><p>"The returns of the elections thus made and promulgated shall be +<i>prima-facie</i> evidence in all courts of justice and before all +civil officers, until set aside after a contest according to law, +of the right of any person<span class='pagenum'><a name="Page_17" id="Page_17">[17]</a></span> named therein to hold and exercise the +office to which he shall by such return be declared elected."</p></div> + +<p>Whatever doubt may have been expressed or felt whether this statute +applied to the canvassers of a presidential election, or whether the +words <i>prima facie</i> really meant <i>prima facie</i>, or whether "courts of +justice," and "civil officers," included the Electoral Commission and +the two Houses of Congress, there can be no doubt that "the returns of +the elections thus made and promulgated" do not include returns +canvassed without jurisdiction, or made under cover of pretended +affidavits which the returning officers themselves caused to be forged.</p> + +<p>But, passing from this view of the subject, although this is sufficient +to dispose of Brewster's pretensions, let us suppose a stronger +case—the strongest supposable—that of a State Legislature directing +not only the manner in which electors shall be appointed, but directing +also that the certificate of the State canvassers shall be conclusive +evidence that the State has appointed in the manner directed.</p> + +<p>Because the Constitution provides that electors shall be appointed by +the State, in the manner directed by its Legislature, it is thence +inferred that the State must furnish the evidence of the appointment, +and of course that none can be received except that which the State has +furnished. And this is said to be the true States-rights doctrine. It is +a strange sight, that of gentlemen clamoring for State rights who will +not allow the people of Louisiana and South Carolina to take care of +themselves; who are even now debating at Washington whether they shall +not order new elections in those States, or which of two State +governments they shall put up and which put down, and who since the war +have treated the South as if no States were there, parceling it into +military districts, and denying recognition until constitutional +amendments were ratified. Their assertion of the conclusiveness of false +and fraudulent canvassers' certificates, on the pretense of upholding +State rights, should seem to be thrown in our faces by way of bravado, +unless it be meant, indeed, for burlesque masking hypocrisy. But if the +sight were not strange, and those gentlemen had been all along as +careful of the rights of<span class='pagenum'><a name="Page_18" id="Page_18">[18]</a></span> the States as they are of their own places, +there is nothing in the claim for the conclusiveness of canvassers' +certificates which receives support from the doctrine of State rights. +On the contrary, the rights of the States are best preserved by fencing +them against force or fraud, by leaving them untrammeled in their own +action, and leaving us untrammeled in finding out what that action has +been. No rights are ever lost by letting in the light.</p> + +<p>A certificate can be conclusive evidence of the States' action, only +when the act and the certificate are identical. If the Constitution had +provided that there should be sent from each State a certificate signed +by such persons as the Legislature might designate, declaring who should +cast the electoral votes, then the only inquiry that could have been +made at Washington would have been, whether the certificate sent up was +so signed and the persons therein mentioned had voted; but the +Constitution has provided nothing of the kind. It has provided that the +State shall appoint in the manner directed by its Legislature, and the +inquiry thereupon to be made at the Capitol is, "Whom has the State +appointed in the manner directed?"</p> + +<p>We agree that the State has complete power, within certain limits +regarding the persons who may be appointed, to appoint its electors in +any manner its Legislature may direct, but whether the State has done so +is open to inquiry. Canvassers of votes are not the State, or the +Legislature of the State, and their certificate is nothing but evidence. +Two facts are to be shown: one that the State has acted, and the other +that the act has been in conformity to the directions of the +Legislature. There is nothing in positive law, or in the reason of +things, which, if the fact certified do not exist, requires that its +falsity should not be open to proof.</p> + +<p>The Electoral Commission and the Senate read the Constitution as if the +words following in italics were part of it:</p> + +<div class="blockquot"><p>"Each State shall appoint, in such manner as the Legislature +thereof may direct, a number of electors equal to the whole number +of Senators and Representatives to which the State may be entitled +in the Congress; but no Senator or Representative, or person +holding an office of trust or profit under the United States, shall +be appointed an elector." <i>And the</i><span class='pagenum'><a name="Page_19" id="Page_19">[19]</a></span> <i>certificate of such officers as +the Legislature of the State may designate shall be conclusive +evidence, not only that the persons certified were appointed by the +State, but that they were appointed in the manner directed by its +Legislature, any mistake, fraud, or duress, of the certifying +officers to the contrary notwithstanding</i>.</p></div> + +<p>But the words of the Constitution as they stand do not carry with them +the words in italics, or their substance; and if it had been proposed to +add them when the Constitution was presented to the people, I do not +believe that they would have been accepted.</p> + +<p>Had it been suggested to the freemen of Massachusetts or Connecticut +that they should give to the Legislature of another State not only the +right of designating how the electors should be chosen, whose voices +might make a President for them, but also the right to designate a +permanent board, with power to say, in the face of the truth, who had or +had not been chosen, the voices of John Hancock and Oliver Ellsworth +would surely have warned the good people of their native Commonwealths +against so dangerous a proposition.</p> + +<p>There is no necessary connection between an appointment and the +certificate of it, unless the two acts are performed by the same +persons. If the appointment of electors for Louisiana had been committed +to the Returning Board, then there might be reason for saying that the +certificate was conclusive, because they appointed when they certified. +But the board had not the power of appointment. That power could not +have been given to them, if the Legislature of Louisiana had so +intended, and it did not so intend.</p> + +<p>The power to give a conclusive certificate of appointment—that is, a +certificate that precludes further inquiry—is virtually a power to +appoint, since no one is then permitted to go behind the certificate to +show that there was neither valid appointment nor form of appointment. +Unless, therefore, the Legislature of Louisiana could, under the +Constitution, confer upon the Returning Board power to appoint +presidential electors for Louisiana, it could not confer upon it power +to give a conclusive certificate of appointment. The constitution of +this Returning Board is known to us all. It was a permanent body, +holding for an undefined period, or for<span class='pagenum'><a name="Page_20" id="Page_20">[20]</a></span> life, consisting of four +persons of one party, when there should have been five, of different +parties; and the four had persistently refused for years to select a +fifth. To pretend that such a body was, or could lawfully be, empowered +to appoint eight electors for the people of Louisiana, to match the +eight who were appointed by the people of Maryland, would be simple +effrontery; and most certainly, as I have said, if they could not +appoint, they could not give an incontrovertible certificate of +appointment. The certificate is one thing; the appointment another. The +State appoints and the Legislature directs the manner of appointment, +but neither can make true that which is false.</p> + +<p><i>Now as to the person appointed.</i> Brewster was one of the very persons +sought to be excluded by these words of the Constitution: "No Senator or +Representative, or person holding an office of trust or profit under the +United States, shall be appointed an elector." He was, nevertheless, +appointed, and he voted, and his vote made the President. How was this +brought about? The Commission answer, "That it is not competent to prove +that any of said persons so appointed electors as aforesaid held an +office of trust or profit under the United States at the time when they +were appointed." Of course, if it was not competent to prove it, the +fact itself must have been of no importance.</p> + +<p>Bentham's "Book of Fallacies" may be enriched, in another edition, with +another fallacy, as remarkable as any he has recorded, to wit, that +prohibition in the American Constitution means prohibition! Talleyrand +was once asked the meaning of non-intervention. "Non-intervention," he +replied, "non-intervention means about the same thing as intervention." +So, in our new constitutional vocabulary, prohibition means about the +same thing as permission.</p> + +<p>It was, indeed, mentioned in the course of the argument, though the +Commission does not appear to have thought much of it, that Brewster, +having resigned his Federal office, and come in upon a new appointment, +to fill his own vacant place on the 6th of December, being then both +present and absent, the question of eligibility did not arise. But +enough has been said about this resignation sham. If such a trick had<span class='pagenum'><a name="Page_21" id="Page_21">[21]</a></span> +been played in respect to a note-of-hand of five dollars, there is not a +justice of the peace who would not have denounced the trick, as +conferring no right and affording no protection.</p> + +<p>The people of New York were amused, three or four years ago, with the +feats of a juggler, who dressed one side of him as a man, and the other +as a woman, and who turned about so quickly that he showed himself as +two persons of different sexes in the same instant. Brewster's feat was +not less remarkable: he was at once absent and present; absent that he +might be appointed, and present that he might vote; went through the +whole performance in less than an hour, absenting himself that he might +be called in to be present, presenting himself though absent, voting +ballots and signing certificates, showing himself to be as versatile and +as agile as that master of jugglery.</p> + +<p>Upon what theory the Commission held that evidence could not be received +of Brewster's Federal office at the time of his appointment does not +appear. He certainly was in the prohibited category. A marriage between +persons within prohibited degrees is not good, even if consummated. The +prohibited union of two offices in the same person should not be thought +a legal union, simply because it is practised. It has been said, though +the Commission did not say it, that Brewster was at least elector <i>de facto</i>, and his vote was good, whatever may have been his title. Then +why should we trouble ourselves about the returning officer's +certificate? If, as elector <i>de facto</i>, his vote was good, then it was +good without the certificate, and all that the Commission should have +looked into was the <i>fact of voting</i>, without troubling themselves about +the certificate of anybody or any other evidence of title. But, in +truth, the distinctions between officers <i>de facto</i> and officers <i>de jure</i> have no application to the present case, and for this reason, +among others, that two persons cannot hold the same office <i>de facto</i>. +It is of the essence of a <i>de facto</i> possession of office that it should +be exclusive. The Chancellor of New York said, in a judicial opinion, +more than thirty years ago: "When there is but one office there cannot +be an officer <i>de jure</i> and an officer <i>de facto</i> both in possession of +the office at the same time." This is true even when the<span class='pagenum'><a name="Page_22" id="Page_22">[22]</a></span> office is a +continuing one. Who, for instance, can say which of the rival Governors +in Louisiana or South Carolina at this moment is the Governor <i>de facto</i>? In deciding between them, would not all the world pronounce this +the only question, which is Governor <i>de jure</i>? Much more is it true +when the office is temporary, existing but for a moment, even if the +doctrine of a <a name='TC_3'></a><ins class="correction" title="Was 'de-facto'"><i>de facto</i></ins> officer can be applied to such an office at +all. In the present case, Brewster went into the State-House and voted +for Mr. Hayes; at the same instant his rival went into the same +State-House and voted for Mr. Tilden. It is absurd to pronounce +Brewster, under such circumstances, an elector <i>de facto</i>, so as to make +his vote for that reason good against his rival in the Tilden college, +who was as much an elector <i>de facto</i> as was Brewster, and had this +difference in his favor, that he was elected, and was eligible, while +Brewster, the intruder, was not eligible, and was not elected. The only +returns which went to the Electoral Commission were the double ones, +where rival colleges of electors had acted at the same time in the same +State. In those cases, as already observed, the question of a <a name='TC_4'></a><ins class="correction" +title="Was 'de-facto'"><i>de facto</i></ins> +elector could not arise. There was but one case, that of Wisconsin, +where it could have arisen, and in that there was but a single return, +which, of course, did not go to the Commission.</p> + + +<h3><span class="smcap">Conclusion.</span></h3> + +<p>Although these pages have been occupied with the vote of Brewster in the +electoral college, it should not be understood, that the other seven +votes which were counted from that State, and the four votes counted +from Florida, were any better than his. The one here considered had its +peculiarities; the others had theirs. All of them were tainted, and the +counting in of the President <i>de facto</i> was twelve times fraudulent. +What may be the outcome I do not know. That will depend upon the spirit +of this generation and the spirit of those to follow. It is a +consolation to know that the questions will be reviewed by a tribunal +higher than the Electoral Commission, higher even than the two Houses of +Congress-the American people—from whose judgment there is no appeal but +to the final judgment of history.</p> + +<p><span class="smcap">New York</span>, <i>March 28, 1877</i>.</p> + + +<hr style="width: 65%;" /> +<div class="transnote"> +<h3>Transcriber's note<a name="tnotes" id="tnotes"></a></h3> + +<p>Printer +errors have been changed and are listed below. All other +inconsistencies are as in the original.</p> + +<p> +The following changes have been made to the text:</p> + +<p><a href='#TC_1'>Page 4</a>: Was 'contine' (instead of one, and because one in the present instance actually determined the result, I will <b>confine</b> my observations to a single vote. For this purpose let us take one of the votes from Louisiana, that, for)</p> +<p><a href='#TC_2'>Page 7</a>: Was 'recived' (election of November 7, 1876, at which he was a candidate on the Republican electoral ticket, there was <b>received</b> at the Department of the Interior, from the hands of the President, this letter:)</p> +<p><a href='#TC_3'>Page 22</a>: Was 'de-facto' (when the office is temporary, existing but for a moment, even if the doctrine of a <b><i>de facto</i></b> officer can be applied to such an office at all. In the present case, Brewster went into the State-House and voted)</p> +<p><a href='#TC_4'>Page 22</a>: Was 'de-facto' (where rival colleges of electors had acted at the same time in the same State. In those cases, as already observed, the question of a <b><i>de facto</i></b> elector could not arise. There was but one case, that of Wisconsin,)</p> + +</div> + + + + + + + +<pre> + + + + + +End of the Project Gutenberg EBook of The Vote That Made the President, by +David Dudley Field + +*** END OF THIS PROJECT GUTENBERG EBOOK THE VOTE THAT MADE THE PRESIDENT *** + +***** This file should be named 30231-h.htm or 30231-h.zip ***** +This and all associated files of various formats will be found in: + https://www.gutenberg.org/3/0/2/3/30231/ + +Produced by Meredith Bach, Carla Foust, and the Online +Distributed Proofreading Team at https://www.pgdp.net (This +book was produced from scanned images of public domain +material from the Google Print project.) + + +Updated editions will replace the previous one--the old editions +will be renamed. + +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 Vote That Made the President + +Author: David Dudley Field + +Release Date: October 11, 2009 [EBook #30231] + +Language: English + +Character set encoding: ASCII + +*** START OF THIS PROJECT GUTENBERG EBOOK THE VOTE THAT MADE THE PRESIDENT *** + + + + +Produced by Meredith Bach, Carla Foust, and the Online +Distributed Proofreading Team at https://www.pgdp.net (This +book was produced from scanned images of public domain +material from the Google Print project.) + + + + + + + + + + THE VOTE + THAT + MADE THE PRESIDENT. + + BY + DAVID DUDLEY FIELD. + + NEW YORK: + D. APPLETON & COMPANY, + 549 & 551 BROADWAY. + 1877. + + + + +COPYRIGHT BY DAVID DUDLEY FIELD. 1877. + + + + +THE VOTE THAT MADE THE PRESIDENT. + + +At ten minutes past four o'clock on the second morning of the present +month (March, 1877), the President of the Senate of the United States, +in the presence of the two Houses of Congress, made this announcement: +"The whole number of the electors appointed to vote for President and +Vice-President of the United States is 369, of which a majority is 185. +The state of the vote for President of the United States, as delivered +by the tellers, and as determined under the act of Congress, approved +January 29, 1877, on this subject, is: for Rutherford B. Hayes, of Ohio, +185 votes; for Samuel J. Tilden, of New York, 184 votes;" and then, +after mentioning the votes for Vice-President, he proceeded: "Wherefore +I do declare, that Rutherford B. Hayes, of Ohio, having received a +majority of the whole number of electoral votes, is duly elected +President of the United States for four years, commencing on the fourth +day of March, 1877." + +Mr. Hayes was thus declared elected by a majority of one. If any vote +counted for him had been counted on the other side, Mr. Tilden, instead +of Mr. Hayes, would have had the 185 votes; if it had been rejected +altogether, each would have had 184 votes, and the House of +Representatives would immediately have elected Mr. Tilden. One vote, +therefore, put Mr. Hayes into the presidential office. + +To make up the 185 votes counted for him, 8 came from Louisiana and 4 +from Florida. Whether they should have been thus counted is a question +that affects the honor, the conscience, and the interests of the +American people. There is not a person living in this country who has +not a direct concern in a just answer. Not one will ever live in it +whose respect for this generation will not depend in some degree upon +that answer. + +The 12 votes were not all alike. Some had one distinction, some another. +But, not to distract attention by the discussion of several transactions +instead of one, and because one in the present instance actually +determined the result, I will confine my observations to a single vote. +For this purpose let us take one of the votes from Louisiana, that, for +instance, of Orlando H. Brewster. + +Brewster was not appointed an elector, inasmuch as he did not receive a +majority of the votes cast by the people of Louisiana, and inasmuch also +as he could not have been appointed if he had received them all. + + +HE DID NOT RECEIVE A MAJORITY OF THE VOTES. + +It would be a waste of time and patience to go through the testimony +taken by the two Houses of Congress for their own information, before +they consented to call in the advice of the Electoral Commission. The +evidence of wrongs on both sides, and the irreconcilable contradictions +of witnesses, made President Seelye and Mr. Pierce, of Massachusetts, +declare it to be impossible for them to reach a satisfactory conclusion +upon the facts, and compelled them to break away from their party, and +refuse to abide by the advice of the Commission. There are certain +things, however, which we know beyond dispute, or about which there is +and can be no controversy, and these only will I mention. We know that +the number of votes cast in Louisiana for the Tilden electors, taking +the first name on the list as representing all, was 83,723, but that the +certificate of the Returning Board put them at 70,508, turning Mr. +Tilden's majority of more than 6,000 into a majority for Mr. Hayes; and +we know that the reduction was made by throwing out more than 13,000 +votes of legal voters voting legally for Mr. Tilden, and that more than +10,000 of these were thrown out upon the assumed authority of a statute +of Louisiana, which in terms gave the board power to throw out votes, +upon examination and deliberation, "whenever, from any poll or +voting-place, there shall be received the _statement of any supervisor_ +of registration _or commissioner_ of election, in form as required by +section 26 of this act, _on affidavit of three or more citizens_, of any +riot, tumult, acts of violence, intimidation, armed disturbance, +bribery, or corrupt influences, which prevented, or tended to prevent, a +fair, free, and peaceable vote of all qualified electors entitled to +vote at such poll or voting-place." + +Whether the statute itself has its warrant in the Constitution is a +question not necessary now to be considered. For my part, I cannot see +the authority for taking out of the ballot-boxes the ballots of lawful +voters and throwing them away because other voters did not vote, +whatever may have been the cause of their not voting, whether they were +frightened, foolish, or perverse. I cannot for the life of me perceive +that the State can be held to have elected persons whom it did not in +fact elect, because it is conjectured, or even made probable, that if +voters who kept away from the polls had in fact attended and voted, they +would have made a majority for these persons. + +Without going into that question, however, and assuming for the sake of +the argument that the statute had all the authority of the most clearly +valid statute that was ever passed, it is certain that the only ground +upon which a vote could have been thrown out, for intimidation or other +corrupt influence, was the statement of a supervisor of registration or +commissioner of election, founded upon the affidavits of three citizens. +When, however, the vote of Louisiana was before the Electoral +Commission, the following offer was made by counsel: + + "We offer to prove that _the statements and affidavits_ purporting + to have been made and forwarded to said Returning Board in + pursuance of the provisions of section 26, of the election law of + 1872, alleging riot, tumult, intimidation, and violence, at or near + certain polls, and in certain parishes, _were_ falsely fabricated + and _forged_ by certain disreputable persons _under the direction_, + and with the knowledge, _of said Returning Board_, and that said + Returning Board, knowing said statements and affidavits to be false + and forged, and that none of the said statements or affidavits were + made in the manner or form or within the time required by law, did + knowingly, willfully, and fraudulently, fail and refuse to canvass + or compile more than 10,000 votes lawfully cast, as is shown by the + statements of votes of the Commissioners of Election." + +This offer the Commission rejected by a vote of 8 to 7. + +In the Commission Mr. Abbott moved the following: + + "_Resolved_, That testimony tending to show that the so-called + Returning Board of Louisiana had no jurisdiction to canvass the + votes for electors of President and Vice-President is admissible." + +This was rejected by the same vote. + +In explaining the reason of their decision in the case, the Commission +used the following language: + + "And the Commission has, by a majority of votes, decided, and does + hereby decide, that it is not competent, under the Constitution and + the law as it existed at the date of the passage of said act, to go + into evidence _aliunde_, the papers opened by the President of the + Senate, in the presence of the two Houses, to prove that other + persons than those regularly certified to by the Governor of the + State of Louisiana, on and according to the determination and + declaration of their appointment by the returning officers for + elections in the said State prior to the time required for the + performance of their duties, had been appointed electors, or by + counter-proof to show that they had not; or that the determination + of the said returning officers was not in accordance with the truth + and the fact, the Commission, by a majority of votes, being of + opinion that it is not within the jurisdiction of the two Houses of + Congress, assembled to count the votes for President and + Vice-President, to enter upon a trial of such questions." + +Whether, therefore, the decisions of the Commission or the reasons given +for them be sound or unsound, it may be assumed, that _Brewster did not +receive a majority of the votes cast by the people of Louisiana, and +that the action of the Returning Board_ in cutting down the majority of +his competitor, so as to reduce it below his, _was taken without +jurisdiction, and upon the pretense of statements and affidavits which +they themselves had caused to be forged_. + + +BREWSTER COULD NOT HAVE BEEN APPOINTED ELECTOR IF HE HAD RECEIVED THE +VOTES OF ALL THE PEOPLE OF LOUISIANA. + +He had been made Surveyor-General of the United States, for the District +of Louisiana, on the 2d of February, 1874; was recommissioned by +President Grant on the 11th of February, 1875, and is at present +exercising the office. Whether he has ever been out of the office +depends upon the facts now to be mentioned. Eight or nine days after the +election of November 7, 1876, at which he was a candidate on the +Republican electoral ticket, there was received at the Department of the +Interior, from the hands of the President, this letter: + + MONROE, _November 4, 1876_. + + DEAR SIR: I hereby tender my resignation of the office of + Surveyor-General of the State of Louisiana, with the request that + it be accepted immediately. With many thanks for your kindness, + + I remain, yours respectfully, + O. H. BREWSTER. + + U. S. GRANT, _President United States_. + +When the letter was written does not appear. It is certain that Brewster +was acting as Surveyor-General on the 10th of November. + +On the 16th of November a letter was addressed to the Commissioner of +the General Land-Office, as follows: + + DEPARTMENT OF THE INTERIOR,} + WASHINGTON, _November 16, 1876_.} + + SIR: I have received the resignation of Mr. Orlando H. Brewster, + Surveyor-General of Louisiana, which he has requested may take + effect immediately. Please inform Mr. Brewster that his resignation + has been accepted by the President, to take effect November 4th + instant, that being the date of his letter of resignation to this + Department. + + Very respectfully, + Z. CHANDLER, _Secretary_. + +At what time, if ever, the Commissioner informed Brewster of the +acceptance of his resignation we do not know, but it could not have been +earlier than the 20th of November. + +On the morning of the 6th of December, the four men who assumed to act +as the Returning Board of Louisiana filed in the office of the +Secretary of that State a certificate that Brewster, with seven other +persons, had been appointed presidential electors. There was then on the +statute-book of Louisiana this enactment: + + "If any one or more of the electors chosen by the people shall fail + from any cause whatever to attend at the appointed place at the + hour of 4 P.M. of the day prescribed for their meeting, it shall be + the duty of the other electors immediately to proceed by ballot to + fill such vacancy or vacancies." + +What Brewster did is thus told by Kellogg, one of the Hayes electors, on +his examination at Washington in January: + + "_Q._ Did Levissee and Brewster vote at the meeting of electors? + + _A._ I believe they did. + + _Q._ Was not an appointment made for somebody to fill Brewster's + place? + + _A._ I believe that that is the case. + + + _Q._ Who was appointed to fill Brewster's place? + + _A._ Brewster himself. + + _Q._ The same man? + + _A._ The same man. + + + _Q._ Were you also instructed by these committees (National and + Congressional Republican Committees) how to dispose of Brewster + and Levissee? + + _A._ My recollection is that some one of the electors had + received a letter suggesting that in case of a vacancy or in case + of the absence of Levissee and Brewster, they should be chosen in + their own places. That is my recollection. + + + _Q._ And yet they absented themselves from the electoral college, + and you filled their vacancies with themselves? + + _A._ They were absent from the college when the college met, and we + filled their vacancies by themselves." + +Being thus installed, they voted for Mr. Hayes within an hour after they +were chosen to fill their own vacancies; and three days afterward +Brewster addressed the following letter to the President: + + NEW ORLEANS, LOUISIANA, _December 9, 1876._ + + SIR: I respectfully apply to be appointed Surveyor-General for the + District of Louisiana. Commendations from prominent gentlemen will + be submitted to your Excellency to justify the appointment. + + I have the honor to remain + Your very obedient servant, + ORLANDO H. BREWSTER. + + U. S. GRANT, _President United States, Washington, D. C._ + +The reappointment was made on the 5th of January, 1877. The Chief of the +Appointment Division in the Interior Department was asked and testified +about it as follows: + + "_Q._ Who recommended his appointment in January? + + _A._ I think the probability is (although there is no evidence of + it) that there was no recommendation, further than his own + application to the President. + + _Q._ You do not know of any recommendation? + + _A._ I do not know of any. + + _Q._ There is none on file? + + _A._ There is none on file to the best of my knowledge. There is + none on file in the Interior Department." + +Who does not perceive the shallow trick by which Brewster pretended to +have divested himself of his Federal office that he might vote; only to +be reinvested as soon as he had voted? + +The letter of resignation, with its false date, and its pretended +acceptance, to take effect as of a time past, were evident shams to make +it appear that he was not holder of a Federal office when he was +elected; his affecting to be absent on the 6th of December, and coming +in immediately to fill the vacancy occasioned by his own absence, in +order to make it appear that his appointment was made on that 6th of +December, instead of the 7th of November, and his barefaced application +on the third day thereafter to be reappointed to the Federal office, +from which he could not possibly have perfected his resignation before +the 20th of November--all these were but so many contrivances to evade +the highest enactment known to our civil polity. In the eye of reason +and of law, he acted during the whole period under that influence of +office which it was the design of the Constitution to prevent, and he +must have entered more thoroughly into the work of his Federal master +than if he had not gone through the form of resigning, inasmuch as that +placed him, more than before, in his master's power. + +Let us now place side by side the commandment of the Constitution and +the resolution of the Electoral Commission: + + COMMANDMENT. | RESOLUTION. + | + "_No_ Senator or Representative, | "The Commission, by a majority + or _person holding an office of | of votes, is also of the opinion + trust or profit under the United | that _it is not competent to prove + States, shall be appointed an | that any of said persons, so + elector._" | appointed electors_ as aforesaid, + | _held an office of trust or + | profit under the United States + | at the time when they were + | appointed_, or that they were + | ineligible under the laws of the + | State, or any other matter + | offered to be proved _aliunde_ + | the said certificates and + | papers." + +It would be unjust to cast upon the Electoral Commission the blame of +all the wrong that has been practised in this presidential count. The +Commission was but a council of advice, which Congress might have taken +or not, as it pleased, the only condition being that, in order to reject +it, both Houses must have agreed. The responsibility of the final +decision lay, after all, upon Congress, or rather, upon the Senate, +which voted throughout to follow the Commission. + + * * * * * + +The facts thus briefly recited present certain questions--moral, +political, and legal--which cannot be considered too soon for our good +repute and our self-respect. + + +THE MORAL QUESTION. + +Whatever differences of opinion there may be about the political and +legal questions involved, there can be none about the moral. The +presidential office is the gift of the people of the several States, of +their own free-will, expressed according to the laws. A falsification of +that will is an offense against the State where it is committed, and +against all the States. If the falsification is beyond the reach of the +law, it is not beyond the reach of the conscience. A robbery is none the +less a robbery because it is beyond the range of vision or the arm of +justice. If the possessor of an estate has entered through the forgery +of a record or the spoliation of a will, which although believed by +every neighbor is beyond judicial proof, all the world pronounces his +possession fraudulent, even though he scatters his wealth in charities +and gathers many companions around his luxurious table. The example is +corrupting, but it is against the eternal law of justice that the act +should be respected or the actors continue forever to prosper. + +It is no answer to these observations to say that frauds have been +practised on the other side. Unhappily there is too much reason to +believe that neither party is free from practices which are at once a +scourge and a dishonor. Neither has the disgraceful monopoly of such +practices, whichever may have the bad preeminence. But this is certain: +one wrong neither justifies nor palliates another. + +There is no set-off known to the moral law. Because A has defrauded B, +that is no reason why B should defraud A. If it were so, society would +go on forever in a compound ratio of crime. The first breach of the law +would furnish excuse for the second, and their progeny would follow in +sad progression to the end of time. This is not, however, the moral +condition of the world. The _lex talionis_ has been abolished by the law +of civilization and the higher law of the gospel. + +In this case of Louisiana there can be neither excuse nor palliation for +the misconduct of the Returning Board. + +On the 10th of November, President Grant telegraphed to the General of +the Army instructions about troops in Louisiana and Florida, and added +that "_no man worthy of the office of President should be willing to +hold it if counted in or placed there by fraud_. Either party can afford +to be disappointed in the result. _The country cannot afford to have the +result tainted by the suspicion of illegal or false returns._" And +again: "The presence of citizens from other States, I understand, is +requested in Louisiana, to see that the Board of Canvassers makes _a +fair count of the vote actually cast_. It is to be hoped that +representative and fair men of both parties will go." + +Did the President of that day misrepresent his party, or his successor, +or has the party changed and the successor also? Had the virtuous +impulses of November faded away in February? Was there a change of heart +or a change of opportunity? Neither Congress nor the Electoral +Commission could give an _honest_ title, without investigating the +honesty of the transactions on which the title was founded; and yet a +President has been installed, in the face of rejected offers to prove +frauds, the grossest, the most shameless, and the most corrupting, in +all our history. + +Then what was the object of the committees of each House of Congress, +sent into the disputed States? Was it to blind the people? Was it to +conceal a meditated fraud? On the very first day of the session, +December 4th, Mr. Edmunds, in the Senate, moved certain resolutions, of +which this was one: + + "_Resolved further_, That the said committee" (the Committee on + Privileges and Elections) "be, and is hereby, instructed to inquire + into the eligibility to office under the Constitution of the United + States of any persons alleged to have been ineligible on the 7th + day of November last, or to be ineligible as electors of President + and Vice-President of the United States, to whom certificates of + election have been, or shall be, issued by the Executive authority + of any State, as such electors, and _whether the appointment of + electors_, or those claiming to be such, in any of the States, _has + been made either by force, fraud, or other means otherwise than in + conformity with the Constitution and laws of the United States, and + the laws of the respective States_; and whether any such + appointment or action of any such elector has been in any wise + unconstitutionally or unlawfully interfered with; and to inquire + and report whether Congress has any constitutional power, and, if + so, what and the extent thereof, in respect of the appointment of + or action of electors of President and Vice-President of the United + States, or over returns or certificates of votes of such electors," + etc. + +Was all this parade of committees sent hither and thither, summoning +witnesses from far and near, committing the recusant to prison, and +looking into State archives; was all this a mock show, a piece of +pantomime, for the amusement of the lookers-on, while conspirators were +plotting how to conceal what they pretended to be wishing to discover? +Taken all in all, the sounding profession, the bustling search, and the +studied concealment, make a drama, half comedy and half tragedy, the +like of which this generation has not seen till now, but the like of +which it and its successors may see many times, if the audience does not +hiss the play, and remit the actors to the streets. + +It has been objected, as a reason for not receiving offered evidence, +that there was not time to take it before the 4th of March. How was that +known? Perhaps it could have been taken in an hour. Why was not the +question asked, how much time the evidence would take, before it was +excluded? If the certificate was false, and the falsehood was +susceptible of proof, every effort possible should have been made to +receive it, and receive it all. It is not commonly accepted as good +reason for not searching after the truth, that the search may be +difficult. Nor is it an unusual occurrence to require an argument or +decision to be made within a period limited. Ten minutes' speeches in +Congress, two hours' argument in the Supreme Court, a jury shut in a +room until they agree upon a verdict, a court required by statute to +render its decision by a day fixed, are not so strange as to be +remarkable, or found in practice so embarrassing as to cause the +practice to be abandoned. + +Nor is it any answer to say that, if the offer of evidence had been +accepted, the proof would have fallen short of the offer. That does not +lie in the mouth of any one to say, who excluded the evidence, or +justified its exclusion. The characters of the counsel who made the +offer, and of the commissioner who moved its acceptance, are a guarantee +not only of their good faith, but of a reason for their belief. No man +has any right to deny that the proof offered would have been made good, +who refused the opportunity. They who closed their ears should in +decency keep their mouths shut. But it was not the counsel and the +commissioner alone who believed that the proof offered would be made +good. Every one who witnessed the examinations in Washington, every one +who read the testimony taken by the Congressional Committees in +Louisiana, must have been satisfied that the conduct of the Returning +Board was throughout unlawful, wicked, and shocking, to the last degree. + +The title of the acting President, however valid in law, if valid at +all, is tainted with fraud in fact. There was fraud in certifying that +Brewster had received a majority of the votes of Louisiana, and fraud in +attempting to evade that part of the Constitution which pronounced his +disqualification. When the Electoral Commission advised Congress, and +Congress accepted, by not rejecting, the advice, that fraud could not be +proved, that advice being but the equivalent of saying that fraud was of +no consequence; when it advised that the incompetency of the Returning +Board, for want of jurisdiction, could not be proved, such proof being +but the equivalent of proof that the pretended board was not a board at +all; when it advised that the forgery, by direction of the board, of the +statements and affidavits on which it pretended to act as true could not +be proved, that proof being but the equivalent of proof that the +pretended statements and affidavits were not statements and affidavits +at all; when it advised that the barrier raised by the Constitution +against the appointment of a Federal officer to choose a Federal +President, was not a barrier at all--the moral sense of the whole +American people was shocked. No form of words can cover up the +falsehood; no sophistry can hide it; no lapse of time wash it out. It +will follow its contrivers wherever they go, confront them whenever they +turn, and as often as one of them asks the suffrages of his countrymen, +he may expect to hear them reply, "Why do you reason with us, why seek +to persuade us into giving you our votes, you that have taught us such a +contempt for votes, that one fraudulent certificate is better than ten +thousand of them?" + + +THE POLITICAL QUESTION. + +The advice of the Commission, with the consequent action of Congress, +was a virtual affirmation of this proposition, that if on the morning of +the 6th of December the Federal general commanding in Louisiana had +surrounded the State-House with soldiers, and marching in eight of his +captains, had compelled the Returning Board to certify their +appointment as electors, and the Governor to add his certificate, +Congress and the country would have been obliged to accept the votes of +these captains as the constitutional and lawful votes of Louisiana +electors. Whoever supposes that the union of these States can endure +under such an interpretation of their fundamental law, must be endowed +with credulity beyond the simplicity of childhood. The doctrine is an +open invitation to transgression and usurpation. The judicious +disposition of a few troops in the capitals of disputed States, on the +day of the electoral vote, will perpetuate an Administration just so +long as the audacity of a President, or the cupidity of his +office-holders, may find it desirable; unless, indeed, it be found, as +is most likely, that the ways of fraud are cheaper, easier, and less +palpable than the ways of force. + + +THE LEGAL QUESTION. + +_As to the conclusiveness of the Governor's and canvassers' +certificates._ The doctrine of the majority of the Commission, and of +the Senate, is, that the certificate of the Governor "_on and according +to the determination and declaration_" of the State canvassers, cannot +be shown to be false, though it may have been obtained by force or +fraud. This doctrine admits that the truth of the _Governor's_ +certificate can be inquired into, else why the qualification that it +must be "_on and according to_" the canvasser's certificate. It is said +to be good only when in such accord; therefore, when not in accord, it +is good for nothing. We may, then, dismiss the Governor's certificate as +of no account, and to be left therefore out of further discussion. The +substance of the doctrine is, that the _certificate of the State +canvassers_ cannot be contradicted. + +This language must, of course, be understood, as used in reference to +the question at that time depending; that is to say, whether evidence to +contradict or annul the certificate was then and there admissible. It +had already been decided in the Florida case that no action of the State +authorities, after the electors had voted, could affect the validity of +the vote. Whether such action before the vote would have been of any +avail was not decided, and will never be decided, unless a radical +change is made in the laws, since, according to present legislation, the +vote of the electors treads fast on the heels of their appointment. In +Florida, they were declared appointed at three o'clock in the morning, +and they voted at twelve, just nine hours afterward. In Louisiana the +interval was even less. To suppose that any State action would or could +be had in such an interval, or in any interval possible under present +laws, would be as wild as to suppose that counting in a President by +fraud will not be followed by imitators at future elections. + +Taking the doctrine, however, precisely as it was applied in the +instance of Louisiana, it is this: that the certificate of State +canvassers cannot be impeached by evidence showing either that they had +no jurisdiction to canvass the electoral vote at all, or that they had +no jurisdiction to throw away votes that were actually cast, inasmuch as +the power to throw away came into existence only when affidavits were +laid before them, and there were no affidavits except such as they had +caused to be forged, which, in the eye of the law, were not affidavits +at all. + +One would say that such a doctrine, held up in its nakedness, need +hardly be attacked, for no man, not maddened by the fanaticism of party, +would be found willing to defend it; yet if not defended, the +disposition of the Louisiana case must be pronounced as unsound in law +as it was injurious in policy and offensive in morals. But I go further, +and deny the conclusiveness of the canvassers' certificate under any +circumstances. Suppose the question to be put thus: Can the certificate +of State canvassers, acting within the scope of their authority, be +questioned by evidence of mistake, fraud, or duress; what should be the +answer? Most certainly it can, should be answered. + +The statutes of the State may or may not have declared the effect of the +certificate. In the case of Louisiana, this was the only statute +relevant: + + "The returns of the elections thus made and promulgated shall be + _prima-facie_ evidence in all courts of justice and before all + civil officers, until set aside after a contest according to law, + of the right of any person named therein to hold and exercise the + office to which he shall by such return be declared elected." + +Whatever doubt may have been expressed or felt whether this statute +applied to the canvassers of a presidential election, or whether the +words _prima facie_ really meant _prima facie_, or whether "courts of +justice," and "civil officers," included the Electoral Commission and +the two Houses of Congress, there can be no doubt that "the returns of +the elections thus made and promulgated" do not include returns +canvassed without jurisdiction, or made under cover of pretended +affidavits which the returning officers themselves caused to be forged. + +But, passing from this view of the subject, although this is sufficient +to dispose of Brewster's pretensions, let us suppose a stronger +case--the strongest supposable--that of a State Legislature directing +not only the manner in which electors shall be appointed, but directing +also that the certificate of the State canvassers shall be conclusive +evidence that the State has appointed in the manner directed. + +Because the Constitution provides that electors shall be appointed by +the State, in the manner directed by its Legislature, it is thence +inferred that the State must furnish the evidence of the appointment, +and of course that none can be received except that which the State has +furnished. And this is said to be the true States-rights doctrine. It is +a strange sight, that of gentlemen clamoring for State rights who will +not allow the people of Louisiana and South Carolina to take care of +themselves; who are even now debating at Washington whether they shall +not order new elections in those States, or which of two State +governments they shall put up and which put down, and who since the war +have treated the South as if no States were there, parceling it into +military districts, and denying recognition until constitutional +amendments were ratified. Their assertion of the conclusiveness of false +and fraudulent canvassers' certificates, on the pretense of upholding +State rights, should seem to be thrown in our faces by way of bravado, +unless it be meant, indeed, for burlesque masking hypocrisy. But if the +sight were not strange, and those gentlemen had been all along as +careful of the rights of the States as they are of their own places, +there is nothing in the claim for the conclusiveness of canvassers' +certificates which receives support from the doctrine of State rights. +On the contrary, the rights of the States are best preserved by fencing +them against force or fraud, by leaving them untrammeled in their own +action, and leaving us untrammeled in finding out what that action has +been. No rights are ever lost by letting in the light. + +A certificate can be conclusive evidence of the States' action, only +when the act and the certificate are identical. If the Constitution had +provided that there should be sent from each State a certificate signed +by such persons as the Legislature might designate, declaring who should +cast the electoral votes, then the only inquiry that could have been +made at Washington would have been, whether the certificate sent up was +so signed and the persons therein mentioned had voted; but the +Constitution has provided nothing of the kind. It has provided that the +State shall appoint in the manner directed by its Legislature, and the +inquiry thereupon to be made at the Capitol is, "Whom has the State +appointed in the manner directed?" + +We agree that the State has complete power, within certain limits +regarding the persons who may be appointed, to appoint its electors in +any manner its Legislature may direct, but whether the State has done so +is open to inquiry. Canvassers of votes are not the State, or the +Legislature of the State, and their certificate is nothing but evidence. +Two facts are to be shown: one that the State has acted, and the other +that the act has been in conformity to the directions of the +Legislature. There is nothing in positive law, or in the reason of +things, which, if the fact certified do not exist, requires that its +falsity should not be open to proof. + +The Electoral Commission and the Senate read the Constitution as if the +words following in italics were part of it: + + "Each State shall appoint, in such manner as the Legislature + thereof may direct, a number of electors equal to the whole number + of Senators and Representatives to which the State may be entitled + in the Congress; but no Senator or Representative, or person + holding an office of trust or profit under the United States, shall + be appointed an elector." _And the certificate of such officers as + the Legislature of the State may designate shall be conclusive + evidence, not only that the persons certified were appointed by the + State, but that they were appointed in the manner directed by its + Legislature, any mistake, fraud, or duress, of the certifying + officers to the contrary notwithstanding_. + +But the words of the Constitution as they stand do not carry with them +the words in italics, or their substance; and if it had been proposed to +add them when the Constitution was presented to the people, I do not +believe that they would have been accepted. + +Had it been suggested to the freemen of Massachusetts or Connecticut +that they should give to the Legislature of another State not only the +right of designating how the electors should be chosen, whose voices +might make a President for them, but also the right to designate a +permanent board, with power to say, in the face of the truth, who had or +had not been chosen, the voices of John Hancock and Oliver Ellsworth +would surely have warned the good people of their native Commonwealths +against so dangerous a proposition. + +There is no necessary connection between an appointment and the +certificate of it, unless the two acts are performed by the same +persons. If the appointment of electors for Louisiana had been committed +to the Returning Board, then there might be reason for saying that the +certificate was conclusive, because they appointed when they certified. +But the board had not the power of appointment. That power could not +have been given to them, if the Legislature of Louisiana had so +intended, and it did not so intend. + +The power to give a conclusive certificate of appointment--that is, a +certificate that precludes further inquiry--is virtually a power to +appoint, since no one is then permitted to go behind the certificate to +show that there was neither valid appointment nor form of appointment. +Unless, therefore, the Legislature of Louisiana could, under the +Constitution, confer upon the Returning Board power to appoint +presidential electors for Louisiana, it could not confer upon it power +to give a conclusive certificate of appointment. The constitution of +this Returning Board is known to us all. It was a permanent body, +holding for an undefined period, or for life, consisting of four +persons of one party, when there should have been five, of different +parties; and the four had persistently refused for years to select a +fifth. To pretend that such a body was, or could lawfully be, empowered +to appoint eight electors for the people of Louisiana, to match the +eight who were appointed by the people of Maryland, would be simple +effrontery; and most certainly, as I have said, if they could not +appoint, they could not give an incontrovertible certificate of +appointment. The certificate is one thing; the appointment another. The +State appoints and the Legislature directs the manner of appointment, +but neither can make true that which is false. + +_Now as to the person appointed._ Brewster was one of the very persons +sought to be excluded by these words of the Constitution: "No Senator or +Representative, or person holding an office of trust or profit under the +United States, shall be appointed an elector." He was, nevertheless, +appointed, and he voted, and his vote made the President. How was this +brought about? The Commission answer, "That it is not competent to prove +that any of said persons so appointed electors as aforesaid held an +office of trust or profit under the United States at the time when they +were appointed." Of course, if it was not competent to prove it, the +fact itself must have been of no importance. + +Bentham's "Book of Fallacies" may be enriched, in another edition, with +another fallacy, as remarkable as any he has recorded, to wit, that +prohibition in the American Constitution means prohibition! Talleyrand +was once asked the meaning of non-intervention. "Non-intervention," he +replied, "non-intervention means about the same thing as intervention." +So, in our new constitutional vocabulary, prohibition means about the +same thing as permission. + +It was, indeed, mentioned in the course of the argument, though the +Commission does not appear to have thought much of it, that Brewster, +having resigned his Federal office, and come in upon a new appointment, +to fill his own vacant place on the 6th of December, being then both +present and absent, the question of eligibility did not arise. But +enough has been said about this resignation sham. If such a trick had +been played in respect to a note-of-hand of five dollars, there is not a +justice of the peace who would not have denounced the trick, as +conferring no right and affording no protection. + +The people of New York were amused, three or four years ago, with the +feats of a juggler, who dressed one side of him as a man, and the other +as a woman, and who turned about so quickly that he showed himself as +two persons of different sexes in the same instant. Brewster's feat was +not less remarkable: he was at once absent and present; absent that he +might be appointed, and present that he might vote; went through the +whole performance in less than an hour, absenting himself that he might +be called in to be present, presenting himself though absent, voting +ballots and signing certificates, showing himself to be as versatile and +as agile as that master of jugglery. + +Upon what theory the Commission held that evidence could not be +received of Brewster's Federal office at the time of his appointment +does not appear. He certainly was in the prohibited category. A marriage +between persons within prohibited degrees is not good, even if +consummated. The prohibited union of two offices in the same person +should not be thought a legal union, simply because it is practised. It +has been said, though the Commission did not say it, that Brewster was +at least elector _de facto_, and his vote was good, whatever may have +been his title. Then why should we trouble ourselves about the returning +officer's certificate? If, as elector _de facto_, his vote was good, +then it was good without the certificate, and all that the Commission +should have looked into was the _fact of voting_, without troubling +themselves about the certificate of anybody or any other evidence of +title. But, in truth, the distinctions between officers _de facto_ and +officers _de jure_ have no application to the present case, and for this +reason, among others, that two persons cannot hold the same office _de +facto_. It is of the essence of a _de facto_ possession of office that +it should be exclusive. The Chancellor of New York said, in a judicial +opinion, more than thirty years ago: "When there is but one office there +cannot be an officer _de jure_ and an officer _de facto_ both in +possession of the office at the same time." This is true even when the +office is a continuing one. Who, for instance, can say which of the +rival Governors in Louisiana or South Carolina at this moment is the +Governor _de facto_? In deciding between them, would not all the world +pronounce this the only question, which is Governor _de jure_? Much more +is it true when the office is temporary, existing but for a moment, even +if the doctrine of a _de facto_ officer can be applied to such an office +at all. In the present case, Brewster went into the State-House and +voted for Mr. Hayes; at the same instant his rival went into the same +State-House and voted for Mr. Tilden. It is absurd to pronounce +Brewster, under such circumstances, an elector _de facto_, so as to make +his vote for that reason good against his rival in the Tilden college, +who was as much an elector _de facto_ as was Brewster, and had this +difference in his favor, that he was elected, and was eligible, while +Brewster, the intruder, was not eligible, and was not elected. The only +returns which went to the Electoral Commission were the double ones, +where rival colleges of electors had acted at the same time in the same +State. In those cases, as already observed, the question of a _de facto_ +elector could not arise. There was but one case, that of Wisconsin, +where it could have arisen, and in that there was but a single return, +which, of course, did not go to the Commission. + + +CONCLUSION. + +Although these pages have been occupied with the vote of Brewster in the +electoral college, it should not be understood, that the other seven +votes which were counted from that State, and the four votes counted +from Florida, were any better than his. The one here considered had its +peculiarities; the others had theirs. All of them were tainted, and the +counting in of the President _de facto_ was twelve times fraudulent. +What may be the outcome I do not know. That will depend upon the spirit +of this generation and the spirit of those to follow. It is a +consolation to know that the questions will be reviewed by a tribunal +higher than the Electoral Commission, higher even than the two Houses of +Congress-the American people--from whose judgment there is no appeal but +to the final judgment of history. + +NEW YORK, _March 28, 1877_. + + * * * * * + + +Transcriber's note + + +The following changes have been made to the text: + +Page 4: "contine" changed to "confine". + +Page 7: "recived" changed to "received". + +Page 22: "de-facto" changed to "de facto". + + +All other inconsistencies are as in the original. + + + + + + +End of the Project Gutenberg EBook of The Vote That Made the President, by +David Dudley Field + +*** END OF THIS PROJECT GUTENBERG EBOOK THE VOTE THAT MADE THE PRESIDENT *** + +***** This file should be named 30231.txt or 30231.zip ***** +This and all associated files of various formats will be found in: + https://www.gutenberg.org/3/0/2/3/30231/ + +Produced by Meredith Bach, Carla Foust, and the Online +Distributed Proofreading Team at https://www.pgdp.net (This +book was produced from scanned images of public domain +material from the Google Print project.) + + +Updated editions will replace the previous one--the old editions +will be renamed. + +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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