David Dudley Field

“ 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. ”

“ 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. ”

“ 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. ”

“ 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 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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 ”

“ 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. ”

“ 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 ”

“ The great political revolutions of the last decade, with the natural result of the lapse of time, have brought into public view a multitude of new men, whose names are in every one's mouth, and of whose lives every one is curious to know the particulars. ”

“ 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. ”

“ 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. ”

“ It is of immeasurable importance, therefore, that we should not only compose the differences that, unfortunately, have arisen, but compose them upon a basis right in itself and appearing to be right also. ”

“ 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. ”

“ We should be able to devise means equally sure of arriving at a result just in itself, and satisfactory to all. The considerations in favor of a judicial committee of the two Houses are cogent, though they may not be conclusive. They are, the necessity of a speedy decision, and the desirableness of keeping, if possible, the ordinary courts out of contact with questions of the greatest political significance. ”

“ The objection that the courts would thus be brought into connection with politics is the only objection. But the questions which they would be called upon to decide, would be questions of law and fact, judicial in their character, and kindred to those which the courts are every day called upon to adjudge. The greatness of the station is only a greater reason for judicial investigation. ”

“ 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 Art Journal is a monthly publication, quarto size, superbly illustrated and printed, and specially devoted to the world of Art—Painting, Sculpture, Architecture, Decoration, Engraving, Etching, Enameling, and Designing in all its branches—having in view the double purpose of supplying a complete illustrated record of progress in the Arts, and of affording a means for the cultivation of Art-taste among the people. ”

“ 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 ”

“ Prominent attention has been also devoted to those various sciences which help to a better understanding of the nature of man, to the bearings of science upon the questions of society and government, to scientific education, and to the conflicts which spring from the progressive nature of scientific knowledge. ”

“ 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 ”

“ The movement of political affairs has kept pace with the discoveries of science, and their fruitful application to the industrial and useful arts and the convenience and refinement of social life. Great wars and consequent revolutions have occurred, involving national changes of peculiar moment. ”

“ Whatever may be the ultimate result of the count, whether his candidate will have lost or won, is of no importance compared with the maintenance of justice and the supremacy of law over the preferences and passions of men. ”

“ 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. ”

“ They embrace all branches of science and of natural history, and depict the most famous and remarkable features of scenery, architecture, and art, as well as the various processes of mechanics and manufactures. Although intended for instruction rather than embellishment, no pains have been spared to insure their artistic excellence ”

“ The civil war of our own country, which was at its height when the last volume of the old work appeared, has happily been ended, and a new course of commercial and industrial activity has been commenced. ”

“ 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. ”

“ Great battles have been fought, and important sieges maintained, of which the details are as yet preserved only in the newspapers, or in the transient publications of the day, but which ought now to take their place in permanent and authentic history. ”

“ It is, that somebody besides the President of the Senate is to count, because, if he was to be the counting officer, the language would naturally have been that the President of the Senate shall open all the certificates and count the votes. ”

“ 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. ”