,,the ,,vote     ,,that     ,,made ,,the
 ,,president4       ,,by     ,,david    
,,dudley ,,field4       ,,new ,,york3   
,d4 ,,appleton  ,,company1     #edi     
#eea ,,broadway4     #ahgg4             
,,copyright ,,by ,,david ,,dudley       
,,field4 #ahgg4          ,,the ,,vote   
,,that ,,made ,,the ,,president4        
,at ten minutes past four o'clock on the
 second morning of the present  month   
7,march1 #ahgg71 the ,president of the  
,senate of the ,united ,states1  in the 
presence of the two ,houses of          
,congress1 made this announcement3  ,the
 whole number of the electors appointed 
to vote for ,president and              
,vice-,president of the ,united ,states 
is #cfi1 of which a majority is #ahe4   
,the state of the vote for ,president of
 the ,united ,states1 as delivered  by  
the tellers1 and as determined under the
 act of ,congress1 approved  ,january   
#bi1 #ahgg1 on this subject1 is3 for    
,rutherford ,b4 ,hayes1 of ,ohio1  #ahe 
votes2 for ,samuel ,j4 ,tilden1 of ,new 

,york1 #ahd votes2 and then1  after     
mentioning the votes for                
,vice-,president1 he proceeded3         
,wherefore  ,i do declare1 that         
,rutherford ,b4 ,hayes1 of ,ohio1 having
 received a  majority of the whole      
number of electoral votes1 is duly      
elected  ,president of the ,united      
,states for four years1 commencing on   
the fourth  day of ,march1 #ahgg4       
,mr4 ,hayes was thus declared elected by
 a majority of one4 ,if any vote        
counted for him had been counted on the 
other side1 ,mr4 ,tilden1 instead  of   
,mr4 ,hayes1 would have had the #ahe    
votes2 if it had been rejected          
altogether1 each would have had #ahd    
votes1 and the ,house of                
,representatives would immediately have 
elected ,mr4 ,tilden4 ,one vote1        
therefore1 put ,mr4 ,hayes into the     
presidential office4    ,to make up the 
#ahe votes counted for him1 #h came from
 ,louisiana and #d  from ,florida4      
,whether they should have been thus     

counted is a question  that affects the 
honor1 the conscience1 and the interests
 of the  ,american people4 ,there is not
 a person living in this country who has
  not a direct concern in a just answer4
 ,not one will ever live in it  whose   
respect for this generation will not    
depend in some degree upon  that answer4
    ,the #ab votes were not all alike4  
,some had one distinction1 some another4
  ,but1 not to distract attention by the
 discussion of several transactions     
instead of one1 and because one in the  
present instance actually  determined   
the result1 ,i will confine my          
observations to a single vote4  ,for    
this purpose let us take one of the     
votes from ,louisiana1 that1 for        
instance1 of ,orlando ,h4 ,brewster4    
,brewster was not appointed an elector1 
inasmuch as he did not receive a        
majority of the votes cast by the people
 of ,louisiana1 and inasmuch also  as he
 could not have been appointed if he had
 received them all4      ,,he ,,did     

,,not ,,receive ,a ,,majority ,,of ,,the
 ,,votes4    ,it would be a waste of    
time and patience to go through the     
testimony  taken by the two ,houses of  
,congress for their own information1    
before  they consented to call in the   
advice of the ,electoral ,commission4   
,the  evidence of wrongs on both sides1 
and the irreconcilable contradictions   
of witnesses1 made ,president ,seelye   
and ,mr4 ,pierce1 of ,massachusetts1    
declare it to be impossible for them to 
reach a satisfactory conclusion  upon   
the facts1 and compelled them to break  
away from their party1 and  refuse to   
abide by the advice of the ,commission4 
,there are certain  things1 however1    
which we know beyond dispute1 or about  
which there is  and can be no           
controversy1 and these only will ,i     
mention4 ,we know that  the number of   
votes cast in ,louisiana for the ,tilden
 electors1 taking  the first name on the
 list as representing all1 was #hc1gbc1 
but that the  certificate of the        

,returning ,board put them at #gj1ejh1  
turning ,mr4  ,tilden's majority of more
 than #f1jjj into a majority for ,mr4   
,hayes2 and  we know that the reduction 
was made by throwing out more than      
#ac1jjj  votes of legal voters voting   
legally for ,mr4 ,tilden1 and that more 
than  #aj1jjj of these were thrown out  
upon the assumed authority of a statute 
of ,louisiana1 which in terms gave the  
board power to throw out votes1  upon   
examination and deliberation1 whenever1 
from any poll or  voting-place1 there   
shall be received the statement of any  
supervisor  of registration or          
commissioner of election1 in form as    
required by  section #bf of this act1 on
 affidavit of three or more citizens1 of
 any  riot1 tumult1 acts of violence1   
intimidation1 armed disturbance1        
bribery1 or corrupt influences1 which   
prevented1 or tended to prevent1 a      
fair1 free1 and peaceable vote of all   
qualified electors entitled to  vote at 
such poll or voting-place4    ,whether  

the statute itself has its warrant in   
the ,constitution is a  question not    
necessary now to be considered4 ,for my 
part1 ,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  
vote1  whatever may have been the cause 
of their not voting1 whether they were  
frightened1 foolish1 or perverse4 ,i    
cannot for the life of me perceive  that
 the ,state can be held to have elected 
persons whom it did not in  fact elect1 
because it is conjectured1 or even made 
probable1 that if  voters who kept away 
from the polls had in fact attended and 
voted1 they  would have made a majority 
for these persons4    ,without going    
into that question1 however1 and        
assuming for the sake of  the argument  
that the statute had all the authority  
of the most clearly  valid statute that 
was ever passed1 it is certain that the 
only ground  upon which a vote could    
have been thrown out1 for intimidation  

or other  corrupt influence1 was the    
statement of a supervisor of            
registration or  commissioner of        
election1 founded upon the affidavits of
 three citizens4  ,when1 however1 the   
vote of ,louisiana was before the       
,electoral  ,commission1 the following  
offer was made by counsel3         ,we  
offer to prove that the statements and  
affidavits purporting       to have been
 made and forwarded to said ,returning  
,board in       pursuance of the        
provisions of section #bf1 of the       
election law of       #ahgb1 alleging   
riot1 tumult1 intimidation1 and         
violence1 at or near       certain      
polls1 and in certain parishes1 were    
falsely fabricated       and forged by  
certain disreputable persons under the  
direction1       and with the knowledge1
 of said ,returning ,board1 and that    
said       ,returning ,board1 knowing   
said statements and affidavits to be    
false       and forged1 and that none of
 the said statements or affidavits were 

made in the manner or form or within the
 time required by law1 did              
knowingly1 willfully1 and fraudulently1 
fail and refuse to canvass       or     
compile more than #aj1jjj votes lawfully
 cast1 as is shown by the               
statements of votes of the              
,commissioners of ,election4    ,this   
offer the ,commission rejected by a vote
 of #h to #g4    ,in the ,commission    
,mr4 ,abbott moved the following3       
,resolved1 ,that testimony tending to   
show that the so-called       ,returning
 ,board of ,louisiana had no            
jurisdiction to canvass the       votes 
for electors of ,president and          
,vice-,president is admissible4    ,this
 was rejected by the same vote4    ,in  
explaining the reason of their decision 
in the case1 the ,commission  used the  
following language3         ,and the    
,commission has1 by a majority of votes1
 decided1 and does       hereby decide1 
that it is not competent1 under the     
,constitution and       the law as it   

existed at the date of the passage of   
said act1 to go       into evidence     
aliunde1 the papers opened by the       
,president of the       ,senate1 in the 
presence of the two ,houses1 to prove   
that other       persons than those     
regularly certified to by the ,governor 
of the       ,state of ,louisiana1 on   
and according to the determination and  
declaration of their appointment by the 
returning officers for       elections  
in the said ,state prior to the time    
required for the       performance of   
their duties1 had been appointed        
electors1 or by       counter-proof to  
show that they had not2 or that the     
determination       of the said         
returning officers was not in accordance
 with the truth       and the fact1 the 
,commission1 by a majority of votes1    
being of       opinion that it is not   
within the jurisdiction of the two      
,houses of       ,congress1 assembled to
 count the votes for ,president and     
,vice-,president1 to enter upon a trial 

of such questions4    ,whether1         
therefore1 the decisions of the         
,commission or the reasons given  for   
them be sound or unsound1 it may be     
assumed1 that ,brewster did not  receive
 a majority of the votes cast by the    
people of ,louisiana1 and  that the     
action of the ,returning ,board in      
cutting down the majority of  his       
competitor1 so as to reduce it below    
his1 was taken without  jurisdiction1   
and upon the pretense of statements and 
affidavits which  they themselves had   
caused to be forged4      ,,brewster    
,,could ,,not ,,have ,,been ,,appointed 
,,elector ,,if ,,he ,,had ,,received    
,,the  ,,votes ,,of ,,all ,,the ,,people
 ,,of ,,louisiana4    ,he had been made 
,surveyor-,general of the ,united       
,states1 for the ,district  of          
,louisiana1 on the #b;d of ,february1   
#ahgd2 was recommissioned by  ,president
 ,grant on the #aath of ,february1      
#ahge1 and is at present  exercising the
 office4 ,whether he has ever been out  

of the office  depends upon the facts   
now to be mentioned4 ,eight or nine days
 after the  election of ,november #g1   
#ahgf1 at which he was a candidate on   
the  ,republican electoral ticket1 there
 was received at the ,department of the 
,interior1 from the hands of the        
,president1 this letter3                
,,monroe1 ,november #d1 #ahgf4          
,,dear ,,sir3 ,i hereby tender my       
resignation of the office of            
,surveyor-,general of the ,state of     
,louisiana1 with the request that       
it be accepted immediately4 ,with many  
thanks for your kindness1               
,i remain1 yours respectfully1          
,o4 ,h4 ,,brewster4         ,u4 ,s4     
,,grant1 ,president ,united ,states4    
,when the letter was written does not   
appear4 ,it is certain that ,brewster   
was acting as ,surveyor-,general on the 
#ajth of ,november4    ,on the #afth of 
,november a letter was addressed to the 
,commissioner of  the ,general          
,land-,office1 as follows3              

,,department ,,of ,,the ,,interior1     
,,washington1 ,november #af1 #ahgf4     
,,sir3 ,i have received the resignation 
of ,mr4 ,orlando ,h4 ,brewster1         
,surveyor-,general of ,louisiana1 which 
he has requested may take       effect  
immediately4 ,please inform ,mr4        
,brewster that his resignation       has
 been accepted by the ,president1 to    
take effect ,november #dth              
instant1 that being the date of his     
letter of resignation to this           
,department4                            
,very respectfully1                     
,z4 ,,chandler1 ,secretary4    ,at what 
time1 if ever1 the ,commissioner        
informed ,brewster of the  acceptance of
 his resignation we do not know1 but it 
could not have been  earlier than the   
#bjth of ,november4    ,on the morning  
of the #fth of ,december1 the four men  
who assumed to act  as the ,returning   
,board of ,louisiana filed in the office
 of the  ,secretary of that ,state a    
certificate that ,brewster1 with seven  

other  persons1 had been appointed      
presidential electors4 ,there was then  
on the  statute-book of ,louisiana this 
enactment3         ,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 #d ,p4,m4 of the day     
prescribed for their meeting1 it shall  
be       the duty of the other electors 
immediately to proceed by ballot to     
fill such vacancy or vacancies4    ,what
 ,brewster did is thus told by ,kellogg1
 one of the ,hayes electors1 on  his    
examination at ,washington in ,january3 
,q4 ,did ,levissee and ,brewster vote at
 the meeting of electors8          ,a4  
,i believe they did4          ,q4 ,was  
not an appointment made for somebody to 
fill ,brewster's       place8           
,a4 ,i believe that that is the case4   
,q4 ,who was appointed to fill          
,brewster's place8          ,a4         
,brewster himself4          ,q4 ,the    
same man8          ,a4 ,the same man4   

,q4 ,were you also instructed by these  
committees 7,national and               
,congressional ,republican ,committees7 
how to dispose of ,brewster        and  
,levissee8          ,a4 ,my recollection
 is that some one of the electors had   
received a letter suggesting that in    
case of a vacancy or in case        of  
the absence of ,levissee and ,brewster1 
they should be chosen in        their   
own places4 ,that is my recollection4   
,q4 ,and yet they absented themselves   
from the electoral college1        and  
you filled their vacancies with         
themselves8          ,a4 ,they were     
absent from the college when the college
 met1 and we        filled their        
vacancies by themselves4    ,being thus 
installed1 they voted for ,mr4 ,hayes   
within an hour after they  were chosen  
to fill their own vacancies2 and three  
days afterward  ,brewster addressed the 
following letter to the ,president3     
,,new ,,orleans1 ,,louisiana1 ,december 
#i1 #ahgf4         ,,sir3 ,i            

respectfully apply to be appointed      
,surveyor-,general for the              
,district of ,louisiana4 ,commendations 
from prominent gentlemen will       be  
submitted to your ,excellency to justify
 the appointment4                       
,i have the honor to remain             
,your very obedient servant1            
,,orlando ,h4 ,,brewster4         ,u4   
,s4 ,,grant1 ,president ,united ,states1
 ,washington1 ,d4 ,c4    ,the           
reappointment was made on the #eth of   
,january1 #ahgg4 ,the ,chief of the     
,appointment ,division in the ,interior 
,department was asked and testified     
about it as follows3         ,q4 ,who   
recommended his appointment in ,january8
          ,a4 ,i think the probability  
is 7although there is no evidence of    
it7 that there was no recommendation1   
further than his own        application 
to the ,president4          ,q4 ,you do 
not know of any recommendation8         
,a4 ,i do not know of any4          ,q4 
,there is none on file8          ,a4    

,there is none on file to the best of my
 knowledge4 ,there is        none on    
file in the ,interior ,department4      
,who does not perceive the shallow trick
 by which ,brewster pretended to  have  
divested himself of his ,federal office 
that he might vote2 only to  be         
reinvested as soon as he had voted8     
,the letter of resignation1 with its    
false date1 and its pretended           
acceptance1 to take effect as of a time 
past1 were evident shams to make  it    
appear that he was not holder of a      
,federal office when he was  elected2   
his affecting to be absent on the #fth  
of ,december1 and coming  in immediately
 to fill the vacancy occasioned by his  
own absence1 in  order to make it appear
 that his appointment was made on that  
#fth of  ,december1 instead of the #gth 
of ,november1 and his barefaced         
application  on the third day thereafter
 to be reappointed to the ,federal      
office1  from which he could not        
possibly have perfected his resignation 

before  the #bjth of ,november--all     
these were but so many contrivances to  
evade  the highest enactment known to   
our civil polity4 ,in the eye of reason 
and of law1 he acted during the whole   
period under that influence of  office  
which it was the design of the          
,constitution to prevent1 and he  must  
have entered more thoroughly into the   
work of his ,federal master  than if he 
had not gone through the form of        
resigning1 inasmuch as that  placed him1
 more than before1 in his master's      
power4    ,let us now place side by side
 the commandment of the ,constitution   
and  the resolution of the ,electoral   
,commission3       ,,commandment4       
,,resolution4                           
,no ,senator or ,representative1    ,the
 ,commission1 by a majority     or      
person holding an office of     of      
votes1 is also of the opinion     trust 
or profit under the ,united    that it  
is not competent to prove     ,states1  
shall be appointed an       that any of 

said persons1 so     elector4           
appointed electors as aforesaid1        
held an office of trust or              
profit under the ,united ,states        
at the time when they were              
appointed1 or that they were            
ineligible under the laws of the        
,state1 or any other matter             
offered to be proved aliunde            
the said certificates and               
papers4    ,it would be unjust to cast  
upon the ,electoral ,commission the     
blame of  all the wrong that has been   
practised in this presidential count4   
,the  ,commission was but a council of  
advice1 which ,congress might have taken
  or not1 as it pleased1 the only       
condition being that1 in order to reject
  it1 both ,houses must have agreed4    
,the responsibility of the final        
decision lay1 after all1 upon ,congress1
 or rather1 upon the ,senate1  which    
voted throughout to follow the          
,commission4           99       99      
99       99       99    ,the facts thus 

briefly recited present certain         
questions--moral1  political1 and       
legal--which cannot be considered too   
soon for our good  repute and our       
self-respect4      ,,the ,,moral        
,,question4    ,whatever differences of 
opinion there may be about the political
 and  legal questions involved1 there   
can be none about the moral4 ,the       
presidential office is the gift of the  
people of the several ,states1 of  their
 own free-will1 expressed according to  
the laws4 ,a falsification of  that will
 is an offense against the ,state where 
it is committed1 and  against all the   
,states4 ,if the falsification is beyond
 the reach of the  law1 it is not beyond
 the reach of the conscience4 ,a robbery
 is none the  less a robbery because it 
is beyond the range of vision or the arm
 of  justice4 ,if the possessor of an   
estate has entered through the forgery  
of a record or the spoliation of a will1
 which although believed by  every      
neighbor is beyond judicial proof1 all  

the world pronounces his  possession    
fraudulent1 even though he scatters his 
wealth in charities  and gathers many   
companions around his luxurious table4  
,the example is  corrupting1 but it is  
against the eternal law of justice that 
the act  should be respected or the     
actors continue forever to prosper4     
,it is no answer to these observations  
to say that frauds have been  practised 
on the other side4 ,unhappily there is  
too much reason to  believe that neither
 party is free from practices which are 
at once a  scourge and a dishonor4      
,neither has the disgraceful monopoly of
 such  practices1 whichever may have the
 bad preminence4 ,but this is certain3  
one wrong neither justifies nor         
palliates another4    ,there is no      
set-off known to the moral law4 ,because
 ,a has defrauded ,b1  that is no reason
 why ,b should defraud ,a4 ,if it were  
so1 society would  go on forever in a   
compound ratio of crime4 ,the first     
breach of the law  would furnish excuse 

for the second1 and their progeny would 
follow in  sad progression to the end of
 time4 ,this is not1 however1 the moral 
condition of the world4 ,the lex        
talionis has been abolished by the law  
of civilization and the higher law of   
the gospel4    ,in this case of         
,louisiana there can be neither excuse  
nor palliation for  the misconduct of   
the ,returning ,board4    ,on the #ajth 
of ,november1 ,president ,grant         
telegraphed to the ,general of  the     
,army instructions about troops in      
,louisiana and ,florida1 and added  that
 no man worthy of the office of         
,president should be willing to  hold it
 if counted in or placed there by fraud4
 ,either party can afford  to be        
disappointed in the result4 ,the country
 cannot afford to have the  result      
tainted by the suspicion of illegal or  
false returns4 ,and  again3 ,the        
presence of citizens from other ,states1
 ,i understand1 is  requested in        
,louisiana1 to see that the ,board of   

,canvassers makes a  fair count of the  
vote actually cast4 ,it is to be hoped  
that  representative and fair men of    
both parties will go4    ,did the       
,president of that day misrepresent his 
party1 or his successor1  or has the    
party changed and the successor also8   
,had the virtuous  impulses of ,november
 faded away in ,february8 ,was there a  
change of heart  or a change of         
opportunity8 ,neither ,congress nor the 
,electoral  ,commission could give an   
honest title1 without investigating the 
honesty of the transactions on which the
 title was founded2 and yet a           
,president has been installed1 in the   
face of rejected offers to prove        
frauds1 the grossest1 the most          
shameless1 and the most corrupting1 in  
all our history4    ,then what was the  
object of the committees of each ,house 
of ,congress1  sent into the disputed   
,states8 ,was it to blind the people8   
,was it to  conceal a meditated fraud8  
,on the very first day of the session1  

,december #dth1 ,mr4 ,edmunds1 in the   
,senate1 moved certain resolutions1 of  
which this was one3         ,resolved   
further1 ,that the said committee 7the  
,committee on       ,privileges and     
,elections7 be1 and is hereby1          
instructed to inquire       into the    
eligibility to office under the         
,constitution of the ,united            
,states of any persons alleged to have  
been ineligible on the #gth       day of
 ,november last1 or to be ineligible as 
electors of ,president       and        
,vice-,president of the ,united ,states1
 to whom certificates of       election 
have been1 or shall be1 issued by the   
,executive authority       of any       
,state1 as such electors1 and whether   
the appointment of       electors1 or   
those claiming to be such1 in any of the
 ,states1 has       been made either by 
force1 fraud1 or other means otherwise  
than in       conformity with the       
,constitution and laws of the ,united   
,states1 and       the laws of the      

respective ,states2 and whether any such
       appointment or action of any such
 elector has been in any wise           
unconstitutionally or unlawfully        
interfered with2 and to inquire         
and report whether ,congress has any    
constitutional power1 and1 if       so1 
what and the extent thereof1 in respect 
of the appointment of       or action of
 electors of ,president and             
,vice-,president of the ,united         
,states1 or over returns or certificates
 of votes of such electors1       etc4  
,was all this parade of committees sent 
hither and thither1 summoning  witnesses
 from far and near1 committing the      
recusant to prison1 and  looking into   
,state archives2 was all this a mock    
show1 a piece of  pantomime1 for the    
amusement of the lookers-on1 while      
conspirators were  plotting how to      
conceal what they pretended to be       
wishing to discover8  ,taken all in all1
 the sounding profession1 the bustling  
search1 and the  studied concealment1   

make a drama1 half comedy and half      
tragedy1 the  like of which this        
generation has not seen till now1 but   
the like of  which it and its successors
 may see many times1 if the audience    
does not  hiss the play1 and remit the  
actors to the streets4    ,it has been  
objected1 as a reason for not receiving 
offered evidence1  that there was not   
time to take it before the #dth of      
,march4 ,how was that  known8 ,perhaps  
it could have been taken in an hour4    
,why was not the  question asked1 how   
much time the evidence would take1      
before it was  excluded8 ,if the        
certificate was false1 and the falsehood
 was  susceptible of proof1 every effort
 possible should have been made to      
receive it1 and receive it all4 ,it is  
not commonly accepted as good  reason   
for not searching after the truth1 that 
the search may be  difficult4 ,nor is it
 an unusual occurrence to require an    
argument or  decision to be made within 
a period limited4 ,ten minutes' speeches

 in  ,congress1 two hours' argument in  
the ,supreme ,court1 a jury shut in a   
room until they agree upon a verdict1 a 
court required by statute to  render its
 decision by a day fixed1 are not so    
strange as to be  remarkable1 or found  
in practice so embarrassing as to cause 
the  practice to be abandoned4    ,nor  
is it any answer to say that1 if the    
offer of evidence had been  accepted1   
the proof would have fallen short of the
 offer4 ,that does not  lie in the mouth
 of any one to say1 who excluded the    
evidence1 or  justified its exclusion4  
,the characters of the counsel who made 
the  offer1 and of the commissioner who 
moved its acceptance1 are a guarantee   
not only of their good faith1 but of a  
reason for their belief4 ,no man  has   
any right to deny that the proof offered
 would have been made good1  who refused
 the opportunity4 ,they who closed their
 ears should in  decency keep their     
mouths shut4 ,but it was not the counsel
 and the  commissioner alone who        

believed that the proof offered would be
 made  good4 ,every one who witnessed   
the examinations in ,washington1 every  
one  who read the testimony taken by the
 ,congressional ,committees in          
,louisiana1 must have been satisfied    
that the conduct of the ,returning      
,board was throughout unlawful1 wicked1 
and shocking1 to the last degree4       
,the title of the acting ,president1    
however valid in law1 if valid at  all1 
is tainted with fraud in fact4 ,there   
was fraud in certifying that  ,brewster 
had received a majority of the votes of 
,louisiana1 and fraud in  attempting to 
evade that part of the ,constitution    
which pronounced his  disqualification4 
,when the ,electoral ,commission advised
 ,congress1 and  ,congress accepted1 by 
not rejecting1 the advice1 that fraud   
could not be  proved1 that advice being 
but the equivalent of saying that fraud 
was of  no consequence2 when it advised 
that the incompetency of the ,returning 
,board1 for want of jurisdiction1 could 

not be proved1 such proof being  but the
 equivalent of proof that the pretended 
board was not a board at  all2 when it  
advised that the forgery1 by direction  
of the board1 of the  statements and    
affidavits on which it pretended to act 
as true could not  be proved1 that proof
 being but the equivalent of proof that 
the  pretended statements and affidavits
 were not statements and affidavits  at 
all2 when it advised that the barrier   
raised by the ,constitution  against the
 appointment of a ,federal officer to   
choose a ,federal  ,president1 was not a
 barrier at all--the moral sense of the 
whole  ,american people was shocked4 ,no
 form of words can cover up the         
falsehood2 no sophistry can hide it2 no 
lapse of time wash it out4 ,it  will    
follow its contrivers wherever they go1 
confront them whenever they  turn1 and  
as often as one of them asks the        
suffrages of his countrymen1  he may    
expect to hear them reply1 ,why do you  
reason with us1 why seek  to persuade us

 into giving you our votes1 you that    
have taught us such a  contempt for     
votes1 that one fraudulent certificate  
is better than ten  thousand of them8   
,,the ,,political ,,question4    ,the   
advice of the ,commission1 with the     
consequent action of ,congress1  was a  
virtual affirmation of this proposition1
 that if on the morning of  the #fth of 
,december the ,federal general          
commanding in ,louisiana had  surrounded
 the ,state-,house with soldiers1 and   
marching in eight of his  captains1 had 
compelled the ,returning ,board to      
certify their  appointment as electors1 
and the ,governor to add his            
certificate1  ,congress and the country 
would have been obliged to accept the   
votes of  these captains as the         
constitutional and lawful votes of      
,louisiana  electors4 ,whoever supposes 
that the union of these ,states can     
endure  under such an interpretation of 
their fundamental law1 must be endowed  
with credulity beyond the simplicity of 

childhood4 ,the doctrine is an  open    
invitation to transgression and         
usurpation4 ,the judicious  disposition 
of a few troops in the capitals of      
disputed ,states1 on the  day of the    
electoral vote1 will perpetuate an      
,administration just so  long as the    
audacity of a ,president1 or the        
cupidity of his  office-holders1 may    
find it desirable2 unless1 indeed1 it be
 found1 as  is most likely1 that the    
ways of fraud are cheaper1 easier1 and  
less  palpable than the ways of force4  
,,the ,,legal ,,question4    ,as to the 
conclusiveness of the ,governor's and   
canvassers'  certificates4 ,the doctrine
 of the majority of the ,commission1 and
 of  the ,senate1 is1 that the          
certificate of the ,governor on and     
according  to the determination and     
declaration of the ,state canvassers1   
cannot  be shown to be false1 though it 
may have been obtained by force or      
fraud4 ,this doctrine admits that the   
truth of the ,governor's  certificate   

can be inquired into1 else why the      
qualification that it  must be on and   
according to the canvasser's            
certificate4 ,it is said  to be good    
only when in such accord2 therefore1    
when not in accord1 it  is good for     
nothing4 ,we may1 then1 dismiss the     
,governor's certificate as  of no       
account1 and to be left therefore out of
 further discussion4 ,the  substance of 
the doctrine is1 that the certificate of
 the ,state  canvassers cannot be       
contradicted4    ,this language must1 of
 course1 be understood1 as used in      
reference to  the question at that time 
depending2 that is to say1 whether      
evidence to  contradict or annul the    
certificate was then and there          
admissible4 ,it  had already been       
decided in the ,florida case that no    
action of the ,state  authorities1 after
 the electors had voted1 could affect   
the validity of  the vote4 ,whether such
 action before the vote would have been 
of any  avail was not decided1 and will 

never be decided1 unless a radical      
change is made in the laws1 since1      
according to present legislation1 the   
vote of the electors treads fast on the 
heels of their appointment4 ,in         
,florida1 they were declared appointed  
at three o'clock in the morning1  and   
they voted at twelve1 just nine hours   
afterward4 ,in ,louisiana the  interval 
was even less4 ,to suppose that any     
,state action would or could  be had in 
such an interval1 or in any interval    
possible under present  laws1 would be  
as wild as to suppose that counting in a
 ,president by  fraud will not be       
followed by imitators at future         
elections4    ,taking the doctrine1     
however1 precisely as it was applied in 
the  instance of ,louisiana1 it is this3
 that the certificate of ,state         
canvassers cannot be impeached by       
evidence showing either that they had   
no jurisdiction to canvass the electoral
 vote at all1 or that they had  no      
jurisdiction to throw away votes that   

were actually cast1 inasmuch as  the    
power to throw away came into existence 
only when affidavits were  laid before  
them1 and there were no affidavits      
except such as they had  caused to be   
forged1 which1 in the eye of the law1   
were not affidavits  at all4    ,one    
would say that such a doctrine1 held up 
in its nakedness1 need  hardly be       
attacked1 for no man1 not maddened by   
the fanaticism of party1  would be found
 willing to defend it2 yet if not       
defended1 the  disposition of the       
,louisiana case must be pronounced as   
unsound in law  as it was injurious in  
policy and offensive in morals4 ,but ,i 
go further1  and deny the conclusiveness
 of the canvassers' certificate under   
any  circumstances4 ,suppose the        
question to be put thus3 ,can the       
certificate  of ,state canvassers1      
acting within the scope of their        
authority1 be  questioned by evidence of
 mistake1 fraud1 or duress2 what should 
be the  answer8 ,most certainly it can1 

should be answered4    ,the statutes of 
the ,state may or may not have declared 
the effect of the  certificate4 ,in the 
case of ,louisiana1 this was the only   
statute  relevant3         ,the returns 
of the elections thus made and          
promulgated shall be       prima-facie  
evidence in all courts of justice and   
before all       civil officers1 until  
set aside after a contest according to  
law1       of the right of any person   
named therein to hold and exercise the  
office to which he shall by such return 
be declared elected4    ,whatever doubt 
may have been expressed or felt whether 
this statute  applied to the canvassers 
of a presidential election1 or whether  
the  words prima facie really meant     
prima facie1 or whether courts of       
justice1 and civil officers1 included   
the ,electoral ,commission and  the two 
,houses of ,congress1 there can be no   
doubt that the returns of  the elections
 thus made and promulgated do not       
include returns  canvassed without      

jurisdiction1 or made under cover of    
pretended  affidavits which the         
returning officers themselves caused to 
be forged4    ,but1 passing from this   
view of the subject1 although this is   
sufficient  to dispose of ,brewster's   
pretensions1 let us suppose a stronger  
case--the strongest supposable--that of 
a ,state ,legislature directing  not    
only the manner in which electors shall 
be appointed1 but directing  also that  
the certificate of the ,state canvassers
 shall be conclusive  evidence that the 
,state has appointed in the manner      
directed4    ,because the ,constitution 
provides that electors shall be         
appointed by  the ,state1 in the manner 
directed by its ,legislature1 it is     
thence  inferred that the ,state must   
furnish the evidence of the appointment1
  and of course that none can be        
received except that which the ,state   
has  furnished4 ,and this is said to be 
the true ,states-rights doctrine4 ,it is
  a strange sight1 that of gentlemen    

clamoring for ,state rights who will    
not allow the people of ,louisiana and  
,south ,carolina to take care of        
themselves2 who are even now debating at
 ,washington whether they shall  not    
order new elections in those ,states1 or
 which of two ,state  governments they  
shall put up and which put down1 and who
 since the war  have treated the ,south 
as if no ,states were there1 parceling  
it into  military districts1 and denying
 recognition until constitutional       
amendments were ratified4 ,their        
assertion of the conclusiveness of false
  and fraudulent canvassers'            
certificates1 on the pretense of        
upholding  ,state rights1 should seem to
 be thrown in our faces by way of       
bravado1  unless it be meant1 indeed1   
for burlesque masking hypocrisy4 ,but if
 the  sight were not strange1 and those 
gentlemen had been all along as  careful
 of the rights of the ,states as they   
are of their own places1  there is      
nothing in the claim for the            

conclusiveness of canvassers'           
certificates which receives support from
 the doctrine of ,state rights4  ,on the
 contrary1 the rights of the ,states are
 best preserved by fencing  them against
 force or fraud1 by leaving them        
untrammeled in their own  action1 and   
leaving us untrammeled in finding out   
what that action has  been4 ,no rights  
are ever lost by letting in the light4  
,a certificate can be conclusive        
evidence of the ,states' action1 only   
when the act and the certificate are    
identical4 ,if the ,constitution had    
provided that there should be sent from 
each ,state a certificate signed  by    
such persons as the ,legislature might  
designate1 declaring who should  cast   
the electoral votes1 then the only      
inquiry that could have been  made at   
,washington would have been1 whether the
 certificate sent up was  so signed and 
the persons therein mentioned had voted2
 but the  ,constitution has provided    
nothing of the kind4 ,it has provided   

that the  ,state shall appoint in the   
manner directed by its ,legislature1 and
 the  inquiry thereupon to be made at   
the ,capitol is1 ,whom has the ,state   
appointed in the manner directed8    ,we
 agree that the ,state has complete     
power1 within certain limits  regarding 
the persons who may be appointed1 to    
appoint its electors in  any manner its 
,legislature may direct1 but whether the
 ,state has done so  is open to inquiry4
 ,canvassers of votes are not the       
,state1 or the  ,legislature of the     
,state1 and their certificate is nothing
 but evidence4  ,two facts are to be    
shown3 one that the ,state has acted1   
and the other  that the act has been in 
conformity to the directions of the     
,legislature4 ,there is nothing in      
positive law1 or in the reason of       
things1 which1 if the fact certified do 
not exist1 requires that its  falsity   
should not be open to proof4    ,the    
,electoral ,commission and the ,senate  
read the ,constitution as if the  words 

following in italics were part of it3   
,each ,state shall appoint1 in such     
manner as the ,legislature       thereof
 may direct1 a number of electors equal 
to the whole number       of ,senators  
and ,representatives to which the ,state
 may be entitled       in the ,congress2
 but no ,senator or ,representative1 or 
person       holding an office of trust 
or profit under the ,united ,states1    
shall       be appointed an elector4    
,and the certificate of such officers as
       the ,legislature of the ,state   
may designate shall be conclusive       
evidence1 not only that the persons     
certified were appointed by the         
,state1 but that they were appointed in 
the manner directed by its              
,legislature1 any mistake1 fraud1 or    
duress1 of the certifying       officers
 to the contrary notwithstanding4       
,but the words of the ,constitution as  
they stand do not carry with them  the  
words in italics1 or their substance2   
and if it had been proposed to  add them

 when the ,constitution was presented to
 the people1 ,i do not  believe that    
they would have been accepted4    ,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  
chosen1 whose voices  might make a      
,president for them1 but also the right 
to designate a  permanent board1 with   
power to say1 in the face of the truth1 
who had or  had not been chosen1 the    
voices of ,john ,hancock and ,oliver    
,ellsworth  would surely have warned the
 good people of their native            
,commonwealths  against so dangerous a  
proposition4    ,there is no necessary  
connection between an appointment and   
the  certificate of it1 unless the two  
acts are performed by the same  persons4
 ,if the appointment of electors for    
,louisiana had been committed  to the   
,returning ,board1 then there might be  
reason for saying that the  certificate 

was conclusive1 because they appointed  
when they certified4  ,but the board had
 not the power of appointment4 ,that    
power could not  have been given to     
them1 if the ,legislature of ,louisiana 
had so  intended1 and it did not so     
intend4    ,the power to give a         
conclusive certificate of               
appointment--that is1 a  certificate    
that precludes further inquiry--is      
virtually a power to  appoint1 since no 
one is then permitted to go behind the  
certificate to  show that there was     
neither valid appointment nor form of   
appointment4  ,unless1 therefore1 the   
,legislature of ,louisiana could1 under 
the  ,constitution1 confer upon the     
,returning ,board power to appoint      
presidential electors for ,louisiana1 it
 could not confer upon it power  to give
 a conclusive certificate of            
appointment4 ,the constitution of  this 
,returning ,board is known to us all4   
,it was a permanent body1  holding for  
an undefined period1 or for life1       

consisting of four  persons of one      
party1 when there should have been five1
 of different  parties2 and the four had
 persistently refused for years to      
select a  fifth4 ,to pretend that such a
 body was1 or could lawfully be1        
empowered  to appoint eight electors for
 the people of ,louisiana1 to match the 
eight who were appointed by the people  
of ,maryland1 would be simple           
effrontery2 and most certainly1 as ,i   
have said1 if they could not  appoint1  
they could not give an incontrovertible 
certificate of  appointment4 ,the       
certificate is one thing2 the           
appointment another4 ,the  ,state       
appoints and the ,legislature directs   
the manner of appointment1  but neither 
can make true that which is false4      
,now as to the person appointed4        
,brewster was one of the very persons   
sought to be excluded by these words of 
the ,constitution3 ,no ,senator or      
,representative1 or person holding an   
office of trust or profit under the     

,united ,states1 shall be appointed an  
elector4 ,he was1 nevertheless1         
appointed1 and he voted1 and his vote   
made the ,president4 ,how was this      
brought about8 ,the ,commission answer1 
,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     
appointed4 ,of course1 if it was not    
competent to prove it1 the  fact itself 
must have been of no importance4        
,bentham's ,book of ,fallacies may be   
enriched1 in another edition1 with      
another fallacy1 as remarkable as any he
 has recorded1 to wit1 that  prohibition
 in the ,american ,constitution means   
prohibition6 ,talleyrand  was once asked
 the meaning of non-intervention4       
,non-intervention1 he  replied1         
non-intervention means about the same   
thing as intervention4  ,so1 in our new 
constitutional vocabulary1 prohibition  
means about the  same thing as          

permission4    ,it was1 indeed1         
mentioned in the course of the argument1
 though the  ,commission does not appear
 to have thought much of it1 that       
,brewster1  having resigned his ,federal
 office1 and come in upon a new         
appointment1  to fill his own vacant    
place on the #fth of ,december1 being   
then both  present and absent1 the      
question of eligibility did not arise4  
,but  enough has been said about this   
resignation sham4 ,if such a trick had  
been played in respect to a note-of-hand
 of five dollars1 there is not a        
justice of the peace who would not have 
denounced the trick1 as  conferring no  
right and affording no protection4      
,the people of ,new ,york were amused1  
three or four years ago1 with the  feats
 of a juggler1 who dressed one side of  
him as a man1 and the other  as a woman1
 and who turned about so quickly that he
 showed himself as  two persons of      
different sexes in the same instant4    
,brewster's feat was  not less          

remarkable3 he was at once absent and   
present2 absent that he  might be       
appointed1 and present that he might    
vote2 went through the  whole           
performance in less than an hour1       
absenting himself that he might  be     
called in to be present1 presenting     
himself though absent1 voting  ballots  
and signing certificates1 showing       
himself to be as versatile and  as agile
 as that master of jugglery4    ,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 appear4 ,he
 certainly was in the prohibited        
category4 ,a marriage  between persons  
within prohibited degrees is not good1  
even if  consummated4 ,the prohibited   
union of two offices in the same person 
should not be thought a legal union1    
simply because it is practised4 ,it  has
 been said1 though the ,commission did  
not say it1 that ,brewster was  at least
 elector de facto1 and his vote was     

good1 whatever may have  been his title4
 ,then why should we trouble ourselves  
about the returning  officer's          
certificate8 ,if1 as elector de facto1  
his vote was good1  then it was good    
without the certificate1 and all that   
the ,commission  should have looked into
 was the fact of voting1 without        
troubling  themselves about the         
certificate of anybody or any other     
evidence of  title4 ,but1 in truth1 the 
distinctions between officers de facto  
and  officers de jure have no           
application to the present case1 and for
 this  reason1 among others1 that two   
persons cannot hold the same office de  
facto4 ,it is of the essence of a de    
facto possession of office that  it     
should be exclusive4 ,the ,chancellor of
 ,new ,york said1 in a judicial         
opinion1 more than thirty years ago3    
,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 time4 ,this is   

true even when the  office is a         
continuing one4 ,who1 for instance1 can 
say which of the  rival ,governors in   
,louisiana or ,south ,carolina at this  
moment is the  ,governor de facto8 ,in  
deciding between them1 would not all the
 world  pronounce this the only         
question1 which is ,governor de jure8   
,much more  is it true when the office  
is temporary1 existing but for a moment1
 even  if the doctrine of a de facto    
officer can be applied to such an office
  at all4 ,in the present case1         
,brewster went into the ,state-,house   
and  voted for ,mr4 ,hayes2 at the same 
instant his rival went into the same    
,state-,house and voted for ,mr4        
,tilden4 ,it is absurd to pronounce     
,brewster1 under such circumstances1 an 
elector de facto1 so as to make  his    
vote for that reason good against his   
rival in the ,tilden college1  who was  
as much an elector de facto as was      
,brewster1 and had this  difference in  
his favor1 that he was elected1 and was 

eligible1 while  ,brewster1 the         
intruder1 was not eligible1 and was not 
elected4 ,the only  returns which went  
to the ,electoral ,commission were the  
double ones1  where rival colleges of   
electors had acted at the same time in  
the same  ,state4 ,in those cases1 as   
already observed1 the question of a de  
facto  elector could not arise4 ,there  
was but one case1 that of ,wisconsin1   
where it could have arisen1 and in that 
there was but a single return1  which1  
of course1 did not go to the            
,commission4      ,,conclusion4         
,although these pages have been occupied
 with the vote of ,brewster in the      
electoral college1 it should not be     
understood1 that the other seven  votes 
which were counted from that ,state1 and
 the four votes counted  from ,florida1 
were any better than his4 ,the one here 
considered had its  peculiarities2 the  
others had theirs4 ,all of them were    
tainted1 and the  counting in of the    
,president de facto was twelve times    

fraudulent4  ,what may be the outcome ,i
 do not know4 ,that will depend upon the
 spirit  of this generation and the     
spirit of those to follow4 ,it is a     
consolation to know that the questions  
will be reviewed by a tribunal  higher  
than the ,electoral ,commission1 higher 
even than the two ,houses of            
,congress-the ,american people--from    
whose judgment there is no appeal but   
to the final judgment of history4       
,,new ,,york1 ,march #bh1 #ahgg4        
99       99       99       99       99  
,transcriber's note      ,the following 
changes have been made to the text3     
,page #d3 contine changed to confine4   
,page #g3 recived changed to received4  
,page #bb3 de-facto changed to de facto4
      ,all other inconsistencies are as 
in the original4