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make in favor of some fraud or other. One who votes according to the public will of the State legally expressed through the ballotboxes is de facto nothing. But if he was defeated or ineligible, he is de facto all he wants to be. One of the Hayes electors in Louisiana was a Federal officer; his election was forbidden by the Constitution of the United States, and he was not elected but beaten at the polls; de facto strained its utmost power on him, and pulled him through in spite of Constitution and people both. But his Democratic competitor, who had acted as an elector in the same way and to the same extent, was legally chosen by an overwhelming majority, and constitutionally eligible; therefore de facto could do nothing for him.

In all the discussions of the subject the men disposed to favor the conspiracy professed a most profound veneration for the "forms of law." This was the keynote struck at New Orleans by the visiting committee, and it is heard in every subsequent argument of counsel and commissioner on that side. It seemed to be understood among them that a formal cheat was perfectly safe from exposure. If the sepulchre was whited on the outside, it made no difference that it was filled with "corruption, dead men's bones, and all uncleanness." No refuge of lies could be swept away, no hidingplace of falsehood could ever be uncovered, if it was built in the prescribed form. Only give it the legal shape and the overflowing scourge would be turned aside. But legal form, however valuable as a covering for fraud, was, in their judgment, no protection for truth or justice or public right. The will of Louisiana was pronounced at the election with all the solemnities required by the law of the State and of the United States. The appointment of the Tilden electors on the 7th of November was a perfectly legal piece of work; there was not a flaw in the record of it as it came from the hands of the appointing power. But it was looked on with perfect contempt. Neither the visiting committee nor the Hayes counsel nor the eight Commissioners bestowed on it any of their love. Their affections were otherwise engaged; they gave the homage and devotion of their hearts to the beautiful regularity, the exquisite precision, with which the Returning Board compounded its false certificate.

Another paradox of the Eight is curious enough to be noted. They declared repeatedly that they had no power to try a contested election case, and for that reason they would not look at the evi

dence which showed what persons were duly appointed electors by the people. Now mark! The case was this. Each of those votes came accompanied by what was asserted to be proof that it was cast by electors duly appointed. The conflict was to be determined by the verifying power which Congress unquestionably has, and which the Commissioners expressly assumed when they swore that they would decide who were duly appointed. To decide it one way or the other required precisely the same jurisdiction, and called into exercise exactly the same faculties. Yet they held that if they decided according to the truth in favor of the electors actually appointed they would be trying a contested election; but if they decided in favor of the pretenders, who had nothing but a fraudulent certificate, they would not be trying a contested election; in other words, their jurisdiction was full and ample to decide it falsely, but wholly unequal to the duty of deciding it truly. Perhaps nothing shows more plainly the animus of the eight commissioners than the determination they made upon the case of Brewster, ineligible elector in Louisiana. Keep in mind that their defined duty was to decide who were duly appointed, and what votes were provided for by the Constitution, and think how they performed it in this part of the case. Brewster was not only defeated at the polls like the rest; he was besides a federal officeholder, and the Constitution expressly declares that no such person shall be appointed an elector. But for the purpose of electing Mr. Hayes his vote was worth as much as all the others. To get that vote for their candidate they were required to go further than they went for any of the rest, and so they held: 1. That the certificate of the Returning Board was proprio rigore an appointment. 2. That it was a due appointment, though corrupt and dishonest. 3. That this was a vote provided for by the Constitution, though the Constitution in plain words provided against it. After all, there was but one question before the Commission. Had the American people a right to elect their own Chief Magistrate? They had the right. Their ancestors struggled for it long, fought for it often, and won it fairly. Being embedded in their Constitution, it cannot be destroyed except by a force strong enough to overthrow the organic structure of the government itself. Legislative enactments or judicial decisions are powerless either to strengthen or impair it. The legerdemain of law-craft, the catches VOL. CXXV. - NO. 257.

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of special pleading, the snapperadoes of practice, do not help us to decide a matter like this. A great nation must not be impaled upon a pin's point. Precedents which might bind a Court of Quarter Sessions determining the settlement of a pauper cannot tie up the hands of the Supreme Legislature defending a fundamental right of the whole people. When Grenville, in 1766, cited the authority of divers cases to show that America might be taxed without representation, Pitt answered: "I come not here armed at all points, with the statute-book doubled down in dog's ears to defend the cause of liberty. I can acknowledge no veneration for any procedure, law, or ordinance, that is repugnant to reason and the first principles of our Constitution. I rejoice that America has resisted." So spoke the defiant friend of our race in the presence of a hostile Parliament ten years before the Declaration of Independence. And now, after this long interval of time, we behold our greatest right, the right on which all other rights depend, — successfully assailed in our own Congress with the same small weapons that Grenville used. If brute force had crushed it out, we might have borne the calamity with fortitude; but to see it circumvented by knavery and pettifogged to death, is too much to be endured with any show of patience.

If the majority of that Commission could but have realized their responsibility to God and man, if they could only have understood that in a free country liberty and law are inseparable, they would have been enrolled among our greatest benefactors, for they would have added strength and grandeur to our institutions. But they could not come up to the height of the great subject. Party passion so benumbed their faculties that a fundamental right seemed nothing to them when it came in conflict with some argument supported by artificial reasoning and drawn from the supposed analogies of technical procedure. The Constitution was in their judgment outweighed by a void statute and the action of a corrupt Returning Board.

Let these things be remembered by our children's children, and if the friends of free government shall ever again have such a contest, let them take care how they leave the decision of it to a tribunal like that which betrayed the nation by enthroning the Great Fraud of 1876.

J. S. BLACK,

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