The Vote That Made the President

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.