David Dudley Field

“ 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. ”

“ 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. ”

“ 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. ”

“ 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." ”

“ 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. ”

“ 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. ”

“ 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." ”

“ 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. ”

“ 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 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 title of the acting President, however valid in law, if valid at all, is tainted with fraud in fact. There was fraud in certifying that Brewster had received a majority of the votes of Louisiana, and fraud in attempting to evade that part of the Constitution which pronounced his disqualification. When the Electoral Commission advised Congress, and Congress accepted, by not rejecting, the advice, that fraud could not be proved, that advice being but the equivalent of saying that fraud was of no consequence ”

“ Taken all in all, the sounding profession, the bustling search, and the studied concealment, make a drama, half comedy and half tragedy, the like of which this generation has not seen till now, but the like of which it and its successors may see many times, if the audience does not hiss the play, and remit the actors to the streets. ”

“ 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. ”

“ Unhappily there is too much reason to believe that neither party is free from practices which are at once a scourge and a dishonor. Neither has the disgraceful monopoly of such practices, whichever may have the bad preëminence. ”

“ 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. ”

“ 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?" ”

“ 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 ”

“ On the morning of the 6th of December, the four men who assumed to act as the Returning Board of Louisiana filed [8] 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. ”

“ Hayes into the presidential office. [4]
To make up the 185 votes counted for him, 8 came from Louisiana and 4 from Florida. Whether they should have been thus counted is a question that affects the honor, the conscience, and the interests of the American people. There is not a person living in this country who has not a direct concern in a just answer. Not one will ever live in it whose respect for this generation will not depend in some degree upon that answer. ”

“ This is true even when the [22] 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. ”