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Title: The Electoral Votes of 1876 - Who Should Count Them, What Should Be Counted, and the Remedy for a Wrong Count
Author: Field, David Dudley, 1805-1894
Language: English
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THE ELECTORAL VOTES OF 1876:

Who Should Count Them, What Should
Be Counted, and the Remedy
for a Wrong Count.

by

DAVID DUDLEY FIELD.



New York:
D. Appleton and Company,
549 & 551 Broadway.
1877.

Copyright by D. Appleton and Company, 1877.



THE ELECTORAL VOTES OF 1876.

  WHO SHOULD COUNT THEM,
  WHAT SHOULD BE COUNTED, AND
  THE REMEDY FOR A WRONG COUNT.


The electoral votes of 1876 have been cast. The certificates are now
in Washington, or on their way thither, to be kept by the President of
the Senate until their seals are broken in February. The certificates
and the votes of thirty-four of the States are undisputed. The
remaining four are debatable, and questions respecting them have
arisen, upon the decision of which depends the election of the
incoming President. These questions are: Who are to count the votes;
what votes are to be counted; and what is the remedy for a wrong
count? I hope not to be charged with presumption if, in fulfilling my
duty as a citizen, I do what I can toward the answering of these
questions aright; and, though I happen to contribute nothing toward
satisfactory answers, I shall be excused for making the effort.

The questions themselves have no relation to the relative merits of
the two candidates. Like other voters, I expressed my own preference
on the morning of the election. That duty is discharged; another duty
supervenes, which is, to take care that my vote is counted and allowed
its due place in the summary of the votes. Otherwise the voting
performance becomes ridiculous, and the voter deserves to be laughed
at for his pains. His duty--to cast his vote according to his
conscience--was clear; it is no less his duty to make the vote felt,
along with other like votes, according to the laws.

The whole duty of a citizen is not ended when his vote is delivered;
there remains the obligation to watch it until it is duly weighed, in
adjusting the preponderance of the general choice. Whatever may be the
ultimate result of the count, whether his candidate will have lost or
won, is of no importance compared with the maintenance of justice and
the supremacy of law over the preferences and passions of men.

It concerns the honor of the nation that fraud shall not prevail or
have a chance of prevailing. If a fraudulent count is possible, it is
of little consequence how my vote or the votes of others be cast; for
the supreme will is not that of the honest voter, but of the dishonest
counter; and, when fraud succeeds, or is commonly thought to have
succeeded, the public conscience, shocked at first, becomes weakened
by acquiescence; and vice, found to be profitable, soon comes to be
triumphant. It is of immeasurable importance, therefore, that we
should not only compose the differences that, unfortunately, have
arisen, but compose them upon a basis right in itself and appearing to
be right also.


WHO SHOULD COUNT THE VOTES?

This is the first question. What is meant by counting? In one sense,
it is only enumeration, an arithmetical operation, which in the
present instance consists of addition and subtraction. In another
sense it involves segregation, separation of the false from the true.
If a hundred coins are thrown upon a banker's counter, and his clerk
is told to count the good ones, he has both to select and to
enumerate. He takes such as he finds sufficient in metal and weight,
and rejects the light and counterfeit. So when the Constitution
ordains that "the votes shall then be counted," it means that the true
ones shall be counted, which involves the separation of the true from
the false, if there be present both false and true. In regard to the
agency by which this double process is to be performed, the words of
the Constitution are few: "The President of the Senate shall, in the
presence of the Senate and House of Representatives, open all the
certificates, and the votes shall then be counted." What would one
take to be the meaning of these words, reading them for the first
time? It is, that somebody besides the President of the Senate is to
count, because, if he was to be the counting officer, the language
would naturally have been that _the President of the Senate shall open
all the certificates and count the votes_. There must have been a
reason for this change of phraseology. It should seem to follow, from
these words alone, that, whoever is to count, it is not the President
of the Senate. It should seem also to follow, that the counting is to
be done, not in the presence of Senators and Representatives as
individuals, but in the presence of the two Houses as organized
bodies. If their attendance as spectators merely was intended, the
expression would naturally have been, in the presence of the Senators
and Representatives or so many of them as may choose to attend. The
presence of the Senate and House means their presence as the two
Houses of Congress, with a quorum of each, in the plenitude of their
power, as the coördinate branches of the legislative department of the
Government. And inasmuch as no authorities are required to be present
other than the President of the Senate and the two Houses, if the
former is not to count the votes, the two Houses must.

The meaning which is thus supposed to be the natural one has been
sanctioned by the legislative and executive departments of the
Government, and established by a usage, virtually unbroken, from the
foundation of the Government to the present year.

The exhaustive publication on the Presidential Counts, just made by
the Messrs. Appleton, leaves little to be said on this head.

The sole exception suggested, in respect to the usage, is the
resolution of 1789, but that is not really an exception. We have not
the text of the resolution. We know, however, that there was nothing
to be done but adding a few figures. There was no dispute about a
single vote, as all the world knew. But taking the resolution to have
been what the references to it in the proceedings of the two Houses
would imply, it meant only that a President should be chosen for that
occasion only. The purpose was not to define the functions of any
officer or body, but to go through the _ceremony_ of announcing what
was already known, and to set the government going. No decisions
between existing parties were to be made; no selection of true votes
from false votes, but only an addition of numbers. Individual members
of Congress have undoubtedly in a few instances expressed different
views, but these members have been few, and they have always been in a
hopeless minority. If any one can read the debates, the bills passed
at different times through one House or the other, the joint
resolutions adopted, and the accounts of the votes from time to time
received or rejected, and doubt that the two Houses of Congress have
asserted and maintained, from 1793 until now, their right to accept or
reject the votes of States, and of individual electors of States, all
that I can say is, that he must have a marvelous capacity of doubting.
He must ignore uniform practice as an exponent of constitutions, and
set up his individual misreading of words, reasonably plain in
themselves, against the opinions of almost all who have gone before
him.

The joint resolution of 1865 is of itself decisive, if a solemn
determination of the two Houses of Congress, approved by the
President, can decide anything. That resolution was in these words:

     "_Whereas_, The inhabitants and local authorities of the States
     of Virginia, North Carolina, South Carolina, Georgia, Florida,
     Alabama, Mississippi, Louisiana, Texas, Arkansas, and Tennessee,
     rebelled against the Government of the United States, and were in
     such condition on the 8th day of November, 1864, that no valid
     election of electors for President and Vice-President of the
     United States, according to the Constitution and laws thereof,
     was held therein on said day: therefore--

     "_Be it resolved_, by the Senate and House of Representatives of
     the United States of America, in Congress assembled, That the
     States mentioned in the preamble to this joint resolution are not
     entitled to representation in the electoral college for the
     choice of President and Vice-President of the United States for
     the term commencing on the 4th day of March, 1864, and no
     electoral votes shall be received or counted from said States,
     concerning the choice of President and Vice-President for said
     term of office."

In approving this resolution President Lincoln accompanied it with
the following message, parts of which I will italicize:

     "_To the Honorable the Senate and House of Representatives:_

     "The joint resolution entitled 'joint resolution declaring
     certain States not entitled to representation in the electoral
     college,' has been signed by the Executive, in deference to the
     view of Congress implied in its passage and presentation to him.
     In his own view, however, _the two Houses of Congress, convened
     under the twelfth article of the Constitution, have complete
     power to exclude from counting all electoral votes deemed by them
     to be illegal_, and it is not competent for the Executive to
     defeat or obstruct that power by a veto, as would be the case if
     his action were at all essential in the matter. He disclaims all
     right of the Executive to interfere in any way in the canvassing
     or counting electoral votes, and also disclaims that by signing
     said resolution he has expressed any opinion on the recitals of
     the preamble, or any judgment of his own upon the subject of the
     resolution."

If this resolution of the two Houses was authorized by the
Constitution, there is no ground for maintaining the power of the
President of the Senate to decide the question of receiving or
rejecting votes. For, if he has the power under the Constitution, he
cannot waive it, nor can any action of Congress take it away. The
resolution of 1865 had the sanction of each House, was signed by the
President of the Senate and the Speaker of the House, and was approved
by the President. It should set the question of the power of the two
Houses forever at rest.

The joint rule, first adopted in 1865, and continued in force for ten
years, asserted the same control. It should not have been adopted if
the pretensions now set up for the President of the Senate were of
force; and he might at any time have disregarded it as worthless. But
he did not disregard it; he did not question it; he obeyed it.

The action of the present Houses, moreover, is an affirmance of their
right to eliminate the false votes from the true. Else why these
committees of each House, investigating at Washington and in the North
and South? Are all the labor and expense of these examinations
undertaken solely in order that the results may be laid before the
President of the Senate for _his_ supreme judgment in the premises? It
is safe to say that there is not a single member of either House who
would not laugh you in the face for asking seriously the question.

Assuming, then, that the power to decide what votes shall be counted
belongs to the two Houses, how must they exercise it? Here, again, let
me take the illustration with which I began, of the coins upon a
banker's counter. Let us suppose that, instead of one clerk, two were
told to count them together. When they came to a particular coin upon
which they disagreed, one insisting that it was genuine and the other
that it was counterfeit, what would then happen, if they did their
duty? They would count the rest and lay that aside, reporting the
disagreement to their superior. The two Houses of Congress have,
however, no superior, except the States and the people. To these there
can be no reference on the instant; and the action of the two Houses
must be final for the occasion.

There can be no decision of the Houses if they disagree, and, as no
other authority can decide, there can be no decision at all. The
counting, including the selection, is an affirmative act; and as two
are to perform it, if performed at all, no count or selection can be
made when the two do not concur. Two judges on the bench cannot render
a judgment when there is a disagreement between them. No more can the
two Houses of Congress. There is here no pretense of alternative
power, playing back and forth between the President of the Senate and
the two Houses. If the former has not power complete and exclusive, he
has none. The result must be that, what the two Houses do not agree to
count, cannot be counted.


WHAT VOTES SHOULD BE COUNTED.

This is the second question. The votes to be counted are the votes of
the electors. But who are the electors? The persons appointed by the
States, in the manner directed by their Legislatures respectively. How
is the fact of appointment to be proved? These are the subordinate
questions, the answers to which go to make up the answer to the main
question.

What are the means of separating the genuine from the counterfeit?
Where are the tests by which to distinguish the true votes from the
false?

The words of the Constitution are not many: "Each State shall appoint,
in such manner as the Legislature thereof may direct, a number of
electors," who shall meet and vote, "make distinct lists of all
persons voted for as President" ... "and of the number of votes for
each, which list, they shall sign and certify and transmit sealed to
the seat of the Government of the United States, directed to the
President of the Senate."

_The State_ must appoint, and the appointment must be made _in such
manner_ as _the Legislature_ thereof may direct. Here are the two
elements of a valid appointment, and they must concur. An appointment
not made by the State, or not made in the manner directed by its
Legislature, is no appointment at all.

There must be _State_ action in the _manner_ directed. If, for
example, an appointment were made by a State authority, such as the
Governor, without the sanction of the Legislature, it would be void.
If it were made by the people in mass-convention, but not in a manner
directed by the Legislature, it would be void also. And if, on the
other hand, it were made in such manner as the Legislature had
directed, but not made by the State, it would be equally invalid.
Indeed, the Legislature may itself have given a direction in
contravention of the State constitution, and thus the direction prove
a nullity. So, too, the Legislature may have acted in contravention of
the Federal Constitution, and for that reason its direction may have
been void. The appointing power is the State, the manner of its action
is prescribed by the Legislature; the valid authority and the valid
manner of its exercise must concur, to make a valid appointment.

If, therefore, the persons assuming the office are not appointed _by
the State_, and _in the manner_ directed by the Legislature, they are
not electors; that is to say, they are not electors _de jure_;
electors _de facto_ they can hardly become, since their functions
exist but for a moment, and with one act they perish. What is an
appointment by the State? How can _a State_ appoint? I answer, by the
people, the corporators of the body politic and corporate, or by one
of the departments of its government, as established by its
constitution. The power to appoint cannot be renounced or divested. It
must ever remain in the State, a living power, to be called into
action at each recurring election. It cannot be delegated, except as
the different powers of the State are by its constitution delegated to
its great departments of government. If it were otherwise, it might be
delegated to a foreign prince, and delegated in perpetuity. It is no
answer to say that such a delegation _would_ not be made, the question
is, whether it _could_ be made, without violating the Constitution of
the country? I insist that it could not; and that if the Legislature
of New York were to authorize our friend the Emperor Alexander, or our
excellent neighbor the Governor-General of Canada, to appoint the
thirty-five presidential electors to which New York is entitled in the
sum total of the electoral colleges, and the electors thus appointed
were to receive the certificate of the Governor of New York, and to
meet, vote, and transmit their certificates to Washington, the votes
might be lawfully rejected. Such an occurrence is in the highest
degree improbable; but stranger things than that have happened. The
Empress Catharine intervened in the election of the kings of Poland,
and the interference led to the downfall of the government and the
blotting of the country from the map of Europe. Indeed, I venture to
express my belief, that such an intervention of foreign influence
in our elections would have been hardly more startling to the
imaginations of our fathers than the spectacle which our own eyes have
seen; federal soldiers removing representatives from the Capitol of
one State, and stationed at the doors of another, to inspect the
certificates of members elected to its Legislature.

Not to go abroad, however, for illustrations, let us suppose that the
General Court convened in the State-House at Boston were to depute the
State of New York or the State of Virginia to appoint electors for the
State of Massachusetts, no man would be wild enough to pronounce such
a deputation valid. It should seem to be certain, for a reason hardly
less satisfactory, that the Legislature of Massachusetts could not
authorize the Mayor of Boston or the town council of Worcester to
appoint her electors; and, if that be so, and the rule is to prevail
that, in law, what cannot be done directly cannot be done indirectly,
it should follow that the State could not delegate to any other agency
the power of appointment. If a body called a returning board be so
constituted as that, in certain contingencies, it may depart from the
inquiry what votes have been cast, and cast the votes itself, or by
_any sort of contrivance_ do the same thing under a different name, or
by a roundabout process, it is, to that extent, an unlawful body under
the Federal Constitution. Assuming, then, that a returning board has
among its functions that of rejecting the votes in particular
districts, for the reason either that they were affected by undue
influence, or that other voters were led by like influence to refrain
from voting, can such a function be valid under the Constitution of
the United States? There is no question were of throwing out
particular votes for vices inherent in themselves, such as that they
were illegible, or were cast by disqualified persons, and the like;
but the question is of rejecting the votes of a certain number--say a
thousand voters--either because they were unduly influenced, or
because another thousand, who might have voted, were, by undue
influences, prevented from voting at all.

Whatever may be the law of a State in respect to the choice of its own
officers, it seems most reasonable to hold that, under that common
Constitution which governs and provides for all the States alike, when
the only legitimate inquiry is whom has a particular _State_
appointed, in the manner directed by its Legislature, and the
Legislature has directed the appointment to be made by a general
election, that is, by the votes of all qualified persons, the only
valid office of a returning board must be to ascertain and declare how
the State has actually voted, not how it might or would have voted
under other circumstances, or, in other words, what is the number of
legal votes actually cast; not how many have been unduly influenced,
or how many other votes would have been cast in a different state of
affairs. I use the expression undue influence, as more comprehensive
than riot, bribery, or intimidation, and including other forms of
improper influence, such as that of capital over labor. The question
should be put in a general form to be correctly answered, because
there is nothing in intimidation by violence which would make it a
good cause for exclusion, more than that other kind of intimidation,
which is social or financial. If, in ascertaining the state of the
vote, it be lawful to inquire whether certain voters were frightened
by a rifle-club to stay away from the polls, or to vote as the club
dictated, it must also be lawful to inquire whether the same number of
voters were induced to vote or not to vote by fear that their
discounts might be lessened at the village bank, or their employment
discontinued at the neighboring factory. I state the proposition,
therefore, as one covering all kinds of undue influence. I refrain,
however, from going into the question whether this influence was or
was not exerted, for I am inquiring into the law as applicable to
certain alleged facts, leaving the truth of the allegations to be
dealt with by others.

The sole object of all the machinery of elections, the ballots, the
ballot-boxes, the canvassers and supervisors of elections, the returns
and the returning boards, is, to ascertain the will of the people.
Nobody supposes that that will is ascertained to a certainty. An
approximation only is possible under our present system. To say
nothing of the exclusion of women from an expression of their will, a
portion only--though it may be a large portion--of the men express
theirs. The sick, the infirm, the absent, say nothing. The
registration is always in excess of the vote, and the number of voters
falls short of the registration. The reason is patent: many voters are
absent at the time of registration, or are otherwise unable or
unmindful to register; and when the time of voting arrives many of
those who are registered are absent or prevented from attendance. The
registration may generally be had on any one of several days, while
the voting is to be done on one day. The machinery is imperfect and
clumsy at best; but that is not a reason for making it worse, or
depriving ourselves of the advantages which it yields, notwithstanding
its imperfections. The nearest approach to absolute justice that we
can now hope to make is to _take the votes_ of all the voters who
offer themselves, and _count the votes that are taken_. Every scheme
of counting out legal votes cast, or counting in votes not cast, must
result in confusion, uncertainty, and fraud. No matter how specious
the argument may be, it will always mislead, for the reason that it
must in its nature substitute conjecture for fact. The vote must, of
course, be legal, it must be intelligible; but such a vote when
offered must be taken, and when taken counted.

The throwing out of all the votes of certain districts is but another
mode of accomplishing the same result as would be effected by the
rejection and addition of votes in the cases supposed: for, if there
be 10,000 voters in the district, and 5,000 only vote, it can make no
difference whether the 5,000 be rejected, or be allowed to remain and
the same number be added to the other side.

If the Legislature of a State were to resolve beforehand that no votes
should be taken in certain counties or parishes, should we not say
that the vote of the remaining counties or parishes would not express
the vote of the State? If, in a particular parish, with twenty
polling-precincts, ten of the precincts are so disturbed by violence
that no votes can be taken, and in the other ten there is no violence,
should the votes of the latter be taken as the net result, or should
no result be declared because half of the voters are prevented from
voting? The practice of a State must be consistent with itself. When
the votes of three-fourths of a State are proffered as the vote of the
State, the votes of three-fourths of a parish must be received as the
vote of the parish. If there was not a "fair and free election" in
one-fourth of the parishes, there was not a "fair and free election"
in the State; and the just result should be, that, instead of
rejecting the votes of those parishes because a portion of the voters
were intimidated, the votes of the _State_ should be rejected
altogether.

But why, let me ask, should lawful votes in any case be rejected,
because other lawful votes might have been given? If they, whose votes
were cast, had prevented other votes from being also cast, that might
be a reason for punishing the former. But if the former were
blameless, where is the justice of punishing them for the faults of
others? Suppose a parish with 10,000 persons entitled to vote, and
divided into ten precincts. Ordinarily only 8,000 will register and
6,000 vote; the vote of the 6,000 being assumed to be an expression of
the will of the 10,000. At a particular election 3,000 persons vote in
five of the precincts. In the other five only 1,000 vote, there being
disturbances on or before the day of election. It is alleged that the
last 1,000 votes should not be counted. Why not? Because, say the
objectors, 2,000 persons did not vote, and it is to be presumed,
first, that they were kept from the polls by fear, and, next, that if
they had voted at all, they would have outvoted the 1,000. Are not
these the merest assumptions? You cannot get the truth without knowing
the motives which kept voters away, and how they would have voted if
they had come. You cannot know either with certainty, without
examining all the voters. And the theory which would lead you to call
them for examination should also lead you to call all who in other
cases have not voted, to ask why they kept away, and how they would
have voted if they had been present. The argument which justifies the
exclusion in case of intimidation would include all cases of absence
and of inquiry into what would have been the result if there had been
no absence. Intimidation is one kind of undue influence; expectation
of benefit is another; fear of social ostracism is another: will you
go into them? There seems no middle course between excluding all
inquiry into the causes of absence and the probable votes of the
absent, and allowing it in every instance where persons entitled to
vote have not voted. To my thinking, a certificate given after the
elimination of votes, in the manner indicated, certifying that the
electors have been chosen by the people of the State, is a palpable
falsehood. _It should have certified that they had been chosen by the
people of so many parishes or counties, out of the whole number._

It is impossible, without deranging our system of election, either to
reject votes actually cast, out of consideration for the motives with
which they were cast, or to add to them the supposed votes which might
have been cast. The ballot itself is a standing protest against
inquiry into motives. It enjoins and protects the secret of the hand;
much more should it enjoin and protect the secret of the heart. And as
for adding votes, on the supposition that they might or would have
been cast but for untoward circumstances, no plausible reason can be
given for it which would not apply to any case of disappointment in
the fullness of the vote. A rainy day of election costs one of the
parties thousands of ballots. If it happen to rain on that day, why
not order a new election in better weather; or, to save that
formality, make an estimate of the number who would have attended
under a cloudless sky, and add their ballots to one side or the other?
The rejection of the votes of a parish can be justified, if
justifiable at all, only on the ground that the votes cast do not give
the voice of the parish, either because they did not express the real
wishes of the voters, or because they would have been overborne by
other votes if they could have been cast.

Does not the foregoing reasoning lead to this conclusion, that whether
the charges of intimidation in certain counties or parishes of a State
be founded in fact or in error, they do not warrant the rejection of
the votes actually cast in those counties or parishes; and,
furthermore, that they who insist upon such rejection must accept, as
a logical conclusion, the rejection, for a like reason, of the votes
of the whole State? I submit that such are the inevitable conclusions.

It is insisted, however, that this is an inquiry which cannot be gone
into in the present state of the canvass. Certificates have been sent
to Washington, purporting to give the result of the election. The
question will probably arise, at the meeting of the two Houses, in
this manner: Two certificates are required, one signed by the
electors, pursuant to the Constitution, certifying their own votes;
and the other signed by or under the direction of the Governor of the
State, pursuant to act of Congress, certifying the appointment of the
electors. Both certificates are sent to the President of the Senate,
in one envelope. It may indeed happen that two envelopes come from the
same State, each containing two certificates of rival governors, and
rival electors. If there is but one envelope, one of the certificates
which should be there may be omitted, or may be imperfect. In all
these cases, it is manifestly incumbent upon the two Houses to receive
or reject, in the exercise of their judgment. But if one envelope
only is presented, containing the two certificates, both in due form,
and objection is nevertheless made that the certificate of the
appointment of electors is false, can the objection be entertained?
There are those who affirm that it cannot. They reason in this wise:
The States are to appoint the electors, and may therefore certify such
as they please. But is not that a _non sequitur_? The States may
appoint whom they please, in such manner as their Legislatures have
directed, but an appointment and a certificate are different things.
The latter is, at the very best, only evidence of the former. The fact
to be determined is the appointment; the certificate is produced as
evidence; it may be controvertible or incontrovertible, as the law may
have provided, but there is nothing in the nature of a certificate
which forbids inquiry into its verity; it is not a revelation from
above; it is a paper made by men, fallible always, and sometimes
dishonest as well as fallible; and, if honest, often deceived. It is
made generally in secret and _ex parte_, without hearing both sides,
without oral testimony, without cross-examination. Of such evidence it
may be safely affirmed, that it is never made final and conclusive
without positive law to that express effect.

Now, it may be competent for the Legislature of a State, under its own
constitution, to determine how far one of its own records shall be
conclusive between its own citizens. It may enact, that the
certificate of a judge of a court of record, of a sheriff, a county
commissioner, a board of tax assessors, or aboard of State canvassers,
shall or shall not be open to investigation. There is, however, no act
of Congress on the subject of the present inquiry, and we are left to
the Constitution itself, with such guides to its true interpretation
as are furnished by just analogy and by history. If it can be shown
that the certificate was corruptly made, by the perpetration of gross
frauds in tampering with the returns, must it nevertheless flaunt its
falsehood in the faces of us all, without the possibility of
contradiction? A President is to be declared elected for thirty-eight
States and forty-two millions of people; the declaration depends upon
the voice, we will suppose, of a single State; that voice is uttered
by her votes; to learn what those votes are, we are referred to a
certificate, and told that we cannot go behind it. In such case, to
assert that the remaining thirty-seven States are powerless to inquire
into the getting up of this certificate, on the demand of those who
offer to prove the fraud of the whole process, is to assert that we
are the slaves of fraud, and cannot take our necks from the yoke. I do
not believe that such is the law of this land, and I give these
reasons for my belief.

In the absence of express enactments to the contrary, any judge may
inquire into any fact necessary to his judgment. The point to be
adjudged and declared in the present case is, who has received a
majority of the electoral votes, that is, of valid electoral votes,
not who has received a majority of certificates. A President is to be
elected, not by a preponderance of certification, but by a
preponderance of voting. The certificate is not the fact to be proved,
but evidence of the fact, and one kind of evidence may be overcome by
other and stronger evidence, unless some positive law declares that
the weaker shall prevail over the stronger, the false over the true.
There may, as I have said, be cases where, for the quieting of titles,
or the ending of controversies, a record or a certificate is made
unanswerable; that is, though it might be truthfully answered, the law
will not allow it to be answered. Such cases are exceptional, and the
burden of establishing them rests upon him who propounds them. Let
him, therefore, who asserts that the certificate of a returning board
cannot be answered by any number of living witnesses to the contrary,
show that positive law which makes it thus unanswerable. There is
certainly nothing in the Constitution of the United States which makes
it so, as there is no act of Congress to that effect.

A certificate of a board of returning officers has nothing to liken it
to a judicial record of contentions between parties. The proceeding is
_ex parte_; or, if there be parties, the other States of the Union are
not represented, however much their rights may be affected; the
evidence is in part at least by one-sided affidavits; the judges may
be interested and partial. What such a board has about it to inspire
confidence or command respect, it is hard to perceive. If there be any
presumption in its favor, or in favor of the justice of its
judgments, the presumption is as far from indisputable as a disputable
presumption can ever be.

To recapitulate, we may formulate the question in this manner: _Whom
has the State appointed to vote in its behalf for President?_ The
manner of appointment is the vote of the people, for the Legislature
has so directed. Who, then, are appointed by the people? To state the
question is nearly equivalent to stating what evidence is admissible;
for the question is not, who received the certificate, but who
received the votes; and any evidence showing what votes were cast and
for whom is pertinent and must therefore be admissible, unless
excluded by positive law. The law by which this question is to be
decided is not State, but Federal. If it were otherwise, the State
officers might evade the Constitution altogether, for this ordains
that the appointment shall be by the State, and in such manner as its
Legislature directs; but if the State certificate is conclusive of the
fact, the State authorities may altogether refuse obedience to the
constitution and laws, and save themselves from the consequences by
certifying that they have obeyed them. And they may in like manner
defraud us of our rights, making resistance impossible, by certifying
that they have not defrauded. Indeed, they might make shorter work of
it, and _omit the election altogether, writing the certificate in its
stead_.

If the Governor of Massachusetts were to certify the election of the
Tilden electors, and their votes were to be sent to Washington,
instead of those which the Hayes electors have just given in the face
of the world, must the Tilden votes be counted? Must this nation bow
down before a falsehood? To ask the question is to answer it. There is
no law to require it; there can be none until American citizens become
slaves. The nature of the question to be determined, the absence of
any positive law to shut out pertinent evidence, the impolicy of such
an exclusion, its injustice, and the impossibility of maintaining it,
if by any fatality it were for a time established--all these
considerations go to make and fortify the position, that whatever body
has authority to decide how a State has voted, has authority to draw
information from all the sources of knowledge. The superstitious
veneration of a certificate, which would implicitly believe it, and
shut the eye to other evidence, is as revolting as that of the poor
negro in the swamps of Congo, who bows down before his fetich. The
idolaters, mentioned in Scripture, who took a tree out of the wood,
burned one part of it, hewed the other, and then worshiped it, were
only prototypes of the men of our day, who bow down before a piece of
paper, signed in secret fourteen hundred miles away, asserting as true
what they know or believe to be false.

It were useless, therefore, to inquire how far the laws of a State
make the certificate of a board of canvassers or of returns conclusive
evidence of the result of an election held in the State. It maybe
admitted that the Supreme Court of Louisiana, for example, has denied
its own competency to go behind the certificate of the board; but even
that decision is entitled to no respect, being made in contravention
of an express provision of the State statute, as the dissenting
opinion of one of the judges clearly shows. Every other State of the
Union, save perhaps one, has decided that the certificate is
impeachable, even in a case where the statute declares that the
canvassers shall "determine what persons have been elected." The
opinion of the Supreme Court of Wisconsin, an extract from which is
given in the Appendix, states and decides the point with clearness and
unanswerable force.

If what has been said be founded in sound reason, the two Houses of
Congress, when inquiring what votes are to be counted, have the right
to go behind the certificate of any officers of a State, to ascertain
who have and who have not been appointed electors. The evidence which
these Houses will receive upon such inquiry it is for them and them
only to prescribe, in the performance of their highest functions and
the exercise of their sincerest judgment.


THE REMEDY FOR A WRONG COUNT

is the remaining question. Hitherto, I have endeavored to state in a
popular manner the existing law, as I understand it. I will now ask a
consideration of the needs of future legislation. If there be anything
obscure in the present law, Congress has the power to make it clear;
if there be danger in our present condition, Congress can remove the
danger. There are various ways of doing it.

One is to provide for a judicial committee of the two Houses, to sit
in judgment, as if they were judges, and pronounce upon the result of
the evidence. The English House of Commons used to reject or admit
members, from considerations of party. Englishmen have thought that
they had at last succeeded in establishing a tribunal which would
decide with impartiality and justice. We should be able to devise
means equally sure of arriving at a result just in itself, and
satisfactory to all. The considerations in favor of a judicial
committee of the two Houses are cogent, though they may not be
conclusive. They are, the necessity of a speedy decision, and the
desirableness of keeping, if possible, the ordinary courts out of
contact with questions of the greatest political significance.

But if it be found impossible to agree upon the formation of such a
committee, then a resort to the courts should certainly be had. The
public conscience must be satisfied that the person sitting in our
highest seat of magistracy is there by a just title; and it can be
satisfied of that, in doubtful cases, only by a judicial inquiry.

An act of Congress might provide either for the case of a double
declaration of the votes, one by each House of Congress, or of a
single declaration by the two Houses acting in concert. In either case
the Supreme Court could be reached only by appeal, and the court of
first instance might be either the Supreme Court of the District of
Columbia or any of the Circuit Courts. The Court of the District
should seem to be the most convenient, the most speedy, and the most
appropriate, as being at the seat of Government.

For the case of a double declaration it might be provided, that if,
upon the counting of the votes the Senate should find one person
elected and the House another, an information should be immediately
filed in the Supreme Court of the District, in the name of United
States, against both the persons thus designated, alleging the fact,
and calling upon each to sustain his title. The difficulty of this
process would be how to expedite the proceedings so that a decision
should be had before the 4th of March, in order to avoid an
interregnum. But I think this difficulty could be overcome. To this
end, the time of the courts engaged in the case should be set apart
for it. The rival claimants would naturally be in Washington, prepared
for the investigation. The evidence previously taken by the two
Houses--for they would assuredly have taken it--could be used, with
the proper guards against hearsay testimony, and any additional
evidence necessary would probably be ready, if the claimants or their
friends knew beforehand that a trial was likely to be had. It might
indeed happen that the questions to be decided would involve little
dispute about facts; as, for example, the present Oregon case. It
should be provided that the trial must be concluded and judgment
pronounced within a certain number of days, either party being at
liberty to appeal, within twenty-four hours after the judgment, to the
Supreme Court of the United States, by which the appeal should be
heard and decided before the 4th day of March.

In case of a single declaration, and consequent induction into office,
an information might be filed in the Supreme Court of the District in
the names of the United States and the claimant, against the
incumbent, and proceedings carried on in the ordinary manner of
proceedings in the nature of _quo warranto_.

Any lawyer could readily frame a bill to embrace these several
provisions. An amendment of the Constitution would not be necessary.
The provisions would operate as a check upon fraud. They would furnish
a more certain means of establishing the right. The objection that the
courts would thus be brought into connection with politics is the only
objection. But the questions which they would be called upon to
decide, would be questions of law and fact, judicial in their
character, and kindred to those which the courts are every day called
upon to adjudge. The greatness of the station is only a greater reason
for judicial investigation. The dignity of the presidential office is
not accepted as a reason why the incumbent should not be impeached and
tried. It can be no more a reason why a usurper should not be ousted
and a rightful claimant admitted. The President is undoubtedly higher
in dignity and greater in power than the Governor of a State, but the
reasons why the title of a Governor should be subjected to judicial
scrutiny are of the same kind as those which go to show that the title
of a President of the United States should be subjected, upon
occasion, to a like scrutiny. The process was tried and found useful
in the Capitol of Wisconsin, and, for similar reasons, it may be tried
and found useful in the Capitol of the Union. So far from degrading
the office, or offending the people to whom the office belongs, it can
but help to make fraud less defiant and right more safe, and add a new
crown to the majesty of law. That triumph of peace and justice in
Wisconsin has, to the eye of reason, given an added glory to her
prairies and hills, and a brighter light to the waters of her shining
lakes.



APPENDIX.

_Observations of the Chief Justice Whiton, of Wisconsin, respecting
the force of a certificate of canvassers:_

     "Before proceeding to state our views in regard to the law
     regulating the canvass of votes by the State canvassers, we
     propose to consider how far the right of a person to an office is
     affected by the determination of the canvassers of the votes cast
     at the election held to choose the officer. Under our
     constitution, almost all our officers are elected by the people.
     Thus the Governor is chosen, the constitution providing that the
     person having the highest number of votes for that office shall
     be elected. But the constitution is silent as to the mode in
     which the election shall be conducted, and the votes cast for
     Governor shall be canvassed and the result of the election
     ascertained. The duty of prescribing the mode of conducting the
     election, and of canvassing the votes was, therefore, devolved
     upon the Legislature. They have accordingly made provision for
     both, and the question is, whether the canvass, or the election,
     establishes the right of a person to an office. It seems clear
     that it cannot be the former, because by our constitution and
     laws it is expressly provided that the election by the qualified
     voters shall determine the question. To hold that the canvass
     shall control, would subvert the foundations upon which our
     government rests. But it has been repeatedly contended in the
     course of this proceeding that, although the election by the
     electors determines the right to the office, yet the decision of
     the persons appointed to canvass the votes cast at the election,
     settles finally and completely the question as to the persons
     elected, and that, therefore, no court can have jurisdiction to
     inquire into the matter. It will be seen that this view of the
     question, while it recognizes the principle that the election is
     the foundation of the right to the office, assumes that the
     canvassers have authority to decide the matter finally and
     conclusively. We do not deem it necessary to say anything on the
     present occasion upon the subject of the jurisdiction of this
     court, as that question has already been decided, and the reasons
     for the decision given. Bearing it in mind, then, that under our
     constitution and laws, it is the election to an office, and not
     the canvass of the votes, which determines the right to the
     office, we will proceed to inquire into the proceedings of the
     State canvassers, by which they determined that the respondent
     was duly elected."--(4 _Wis._, 792.)



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2. On the second to last page of advertisements, the sentence
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