David Dudley Field

“ 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 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." ”

“ 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 ”

“ 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. ”

“ 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. ”

“ A falsification of that will is an offense against the State where it is committed, and against all the [11] States. If the falsification is beyond the reach of the law, it is not beyond the reach of the conscience. A robbery is none the less a robbery because it is beyond the range of vision or the arm of justice. ”

“ 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. ”

“ 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. ”

“ It is not commonly accepted as good reason for not searching after the truth, that the search may be difficult. Nor is it an unusual occurrence to require an argument or decision to be made within a period limited. Ten minutes' speeches in Congress, two hours' argument in the Supreme Court, a jury shut in a room until they agree upon a verdict, a court required by statute to render its decision by a day fixed, are not so strange as to be remarkable, or found in practice so embarrassing as to cause the practice to be abandoned. ”

“ 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; [Pg 17] to learn what those votes are, we are referred to a certificate, and told that we cannot go behind it. ”

“ 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. ”

“ 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. ”

“ 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 [Pg 4] 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. ”

“ 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." ”

“ 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 ”

“ On the 10th of November, President Grant telegraphed to the General of the Army instructions about troops in Louisiana and Florida, and added that "no man worthy of the office of President should be willing to hold it if counted in or placed there by fraud. Either party can afford to be disappointed in the result. The country cannot afford to have the result tainted by the suspicion of illegal or false returns." And again: "The presence of citizens from other States, I understand, is requested in Louisiana, to see that the Board of Canvassers makes a fair count of the vote actually cast. ”

“ No man has any right to deny that the proof offered would have been made good, who refused the opportunity. They who closed their ears should in decency keep their mouths shut. But it was not the counsel and the commissioner alone who believed that the proof offered would be made good. Every one who witnessed the examinations in Washington, every one who read the testimony taken by the Congressional Committees in Louisiana, must have been satisfied that the conduct of the [14] Returning Board was throughout unlawful, wicked, and shocking, to the last degree. ”

“ 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. ”

“ 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. ”

“ 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 [Pg 22] 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 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. ”

“ 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. ”

“ If the possessor of an estate has entered through the forgery of a record or the spoliation of a will, which although believed by every neighbor is beyond judicial proof, all the world pronounces his possession fraudulent, even though he scatters his wealth in charities and gathers many companions around his luxurious table. ”

“ 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. ”

“ 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 [Pg 13] votes cast, or counting in votes not cast, must result in confusion, uncertainty, and fraud. ”

“ 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 [Pg 15] 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 ”

“ It will follow its contrivers wherever they go, confront them whenever they turn, and as often as one of them asks the suffrages of his countrymen, he may expect to hear them reply, "Why do you reason with us, why seek to persuade us into giving you our votes, you that have taught us such a contempt for votes, that one fraudulent certificate is better than ten thousand of them?" ”