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.