_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.