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: