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.
The Remedy for a Wrong Count
is the remaining question. Hitherto, I have endeavored to state in a popular manner the existing law, as I understand it. I will now ask a consideration of the needs of future legislation. If there be anything obscure in the present law, Congress has the power to make it clear; if there be danger in our present condition, Congress can remove the danger. There are various ways of doing it.
One is to provide for a judicial committee of the two Houses, to sit in judgment, as if they were judges, and pronounce upon the result of the evidence. The English House of Commons used to reject or admit members, from considerations of party. Englishmen have thought that they had at last succeeded in establishing a tribunal which would decide with impartiality and justice. 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.