The Vote That Made the President

by David Dudley Field

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 chosen, whose voices might make a President for them, but also the right to designate a permanent board, with power to say, in the face of the truth, who had or had not been chosen, the voices of John Hancock and Oliver Ellsworth would surely have warned the good people of their native Commonwealths against so dangerous a proposition.

There is no necessary connection between an appointment and the certificate of it, unless the two acts are performed by the same persons. If the appointment of electors for Louisiana had been committed to the Returning Board, then there might be reason for saying that the certificate was conclusive, because they appointed when they certified. But the board had not the power of appointment. That power could not have been given to them, if the Legislature of Louisiana had so intended, and it did not so intend.

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 constitution of this Returning Board is known to us all. It was a permanent body, holding for an undefined period, or for life, consisting of four persons of one party, when there should have been five, of different parties; and the four had persistently refused for years to select a fifth. To pretend that such a body was, or could lawfully be, empowered to appoint eight electors for the people of Louisiana, to match the eight who were appointed by the people of Maryland, would be simple effrontery; and most certainly, as I have said, if they could not appoint, they could not give an incontrovertible certificate of appointment. The certificate is one thing; the appointment another. The State appoints and the Legislature directs the manner of appointment, but neither can make true that which is false.

Now as to the person appointed. 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." Of course, if it was not competent to prove it, the fact itself must have been of no importance.

Bentham's "Book of Fallacies" may be enriched, in another edition, with another fallacy, as remarkable as any he has recorded, to wit, that prohibition in the American Constitution means prohibition! Talleyrand was once asked the meaning of non-intervention. "Non-intervention," he replied, "non-intervention means about the same thing as intervention." So, in our new constitutional vocabulary, prohibition means about the same thing as permission.

It was, indeed, mentioned in the course of the argument, though the Commission does not appear to have thought much of it, that Brewster, having resigned his Federal office, and come in upon a new appointment, to fill his own vacant place on the 6th of December, being then both present and absent, the question of eligibility did not arise. But enough has been said about this resignation sham. If such a trick had been played in respect to a note-of-hand of five dollars, there is not a justice of the peace who would not have denounced the trick, as conferring no right and affording no protection.

The people of New York were amused, three or four years ago, with the feats of a juggler, who dressed one side of him as a man, and the other as a woman, and who turned about so quickly that he showed himself as two persons of different sexes in the same instant. Brewster's feat was not less remarkable: he was at once absent and present; absent that he might be appointed, and present that he might vote; went through the whole performance in less than an hour, absenting himself that he might be called in to be present, presenting himself though absent, voting ballots and signing certificates, showing himself to be as versatile and as agile as that master of jugglery.

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. Then why should we trouble ourselves about the returning officer's certificate? If, as elector de facto, his vote was good, then it was good without the certificate, and all that the Commission should have looked into was the fact of voting, without troubling themselves about the certificate of anybody or any other evidence of title. But, in truth, the distinctions between officers de facto and officers de jure have no application to the present case, and for this reason, among others, that two persons cannot hold the same office de facto. It is of the essence of a de facto possession of office that it should be exclusive. 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." This is true even when the 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. Hayes; at the same instant his rival went into the same State-House and voted for Mr. Tilden. It is absurd to pronounce Brewster, under such circumstances, an elector de facto, so as to make his vote for that reason good against his rival in the Tilden college, who was as much an elector de facto as was Brewster, and had this difference in his favor, that he was elected, and was eligible, while Brewster, the intruder, was not eligible, and was not elected. The only returns which went to the Electoral Commission were the double ones, where rival colleges of electors had acted at the same time in the same State. In those cases, as already observed, the question of a de facto elector could not arise. There was but one case, that of Wisconsin, where it could have arisen, and in that there was but a single return, which, of course, did not go to the Commission.

Conclusion.

Although these pages have been occupied with the vote of Brewster in the electoral college, it should not be understood, that the other seven votes which were counted from that State, and the four votes counted from Florida, were any better than his. The one here considered had its peculiarities; the others had theirs. All of them were tainted, and the counting in of the President de facto was twelve times fraudulent. What may be the outcome I do not know. 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.