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its duties; each would have called upon the army and the people to sustain him against the usurpations of the other; and each would have found great numbers of supporters rallying to his standard in every State and District of the Union. The legislative branches of the government would, of necessity, have been placed in an attitude of direct and absolute antagonism, not only as to the rightful title to the office of President, but upon every subject of legislation ; for there could be no legislation without an Executive, and neither would recognize the President of the other. Mr. Tilden could make no appointment effectual, for the Senate would not recognize him ; and neither he nor Mr. Hayes could get money to carry on the government, for neither House would grant it, save to the person it regarded as the true President. The solemn ceremonies and the grand pageant of inauguration would be only the first act in the awful tragedy of anarchy and civil war; lasting probably until the time for the next Presidential election, and making such election practically impossible, unless, indeed, before that time some other system of government should have been established upon the ruins of our national structure.
The gravity of the situation thus briefly described led men of all parties and all views in Congress to unite, as one of the simplest and plainest duties of patriotism, in a measure of legislation that should peacefully solve the difficulty, with whatever result to the two claimants of the office, by a formal disposition of the disputed questions in such a way as to produce a single result under the forms of law.
The ordinary obstacle to passing any law upon the subject after the election had taken place, arising from the difference of parties in control of the Senate and House of Representatives, would, if it could be overcome, prove a blessing of great value, from the fact that both parties in the country would have confidence in the fairness of a measure that could not pass the Senate without the votes of a large part of the Republicans, and could not pass the House of Representatives without the votes of a large part of the Democrats; and, as a consequence, the result, which must inevitably disappoint one party or the other, would be likely to be acquiesced in peacefully.
The first question, then, was, Could such a law be constitutionally passed ? If the power to decide all questions in the
affair was vested by the Constitution in the President of the Senate, evidently no law adequate to the emergency could be enacted; for, however much a law might regulate the exercise of the power, there must be left at last in the President of the Senate the final power itself. But the discussion of the subject convinced nearly all members that such a power did not exist, and that it ought not to exist; and, indeed, some of the most vigorous of the supporters of the power had, on previous occasions, declared its danger and denied its existence. If, on the other hand, the power resided in the two Houses of Congress, the law proposed only to regulate the exercise of the power, and to leave the two Houses in possession of full authority to overrule the report of the Commission, if they should agree so to do.
But another ground existed for the exercise of legislative power, thought by many to be the true one, which will now be stated. As has been seen, the Constitution directed that the votes should be counted, but did not direct in terms either that the President of the Senate, or that the two Houses, should perform the act. It provided for one single act by the President of the Senate, namely, the opening of the certificates ; and one act by the two Houses, namely, their presence; and that a third and most important of all, namely, the counting, should then be done. This was an act that, like many others named in the Constitution, required, in cases of difficulty or dispute, the providing of means, methods, and regulations for its due and just performance. In instances of this character the Constitution did not undertake to make such provisions, but declared, in a separate clause applicable to every such case, that Congress should have power “ to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States or any department or officer thereof.” 1
This plain and comprehensive provision, it will be seen, is applicable to every possible condition of affairs. A constitution, both from its nature and for convenience, must deal with subjects in a general way, and must provide for the application of its principles and requirements, so far at least as they are affirmative, by the law-making power; and there is scarcely one of its provisions, even of the most explicit character, that has not, from
1 Art. 1, sec. 8, last clause.
the first, been applied to the affairs of the government by legislation. It cannot be needful to refer to instances; the intelligent reader, professional or other, will readily recall many.
Reading the two clauses together, the Constitution declares that the votes for President shall be counted, and that Congress may make such law as shall be necessary and proper to execute that duty. It would seem conclusively to follow, that a law providing the means and methods of performing the act in question is constitutional.
The law under which the last Presidential vote was counted was accordingly passed by the votes of members of both Houses irrespective of party. It was not, perhaps, the best theoretically possible, but it was the best practically possible on that occasion.
Two or three of its cardinal characteristics should be noticed ; for, keeping them in view, few people will be affected by clamor about “ fraud and conspiracy” in the Electoral Commission, whether raised by politicians warm with excitement and seeking for applause, or by professional men who may have failed to obtain the loot of victory, and whose ambition, disappointed of ministries and attorney-generalships, feeds upon the glory of tirades, full of every thing but correct statement, in the press. In the first place, the act recognized the necessity that the Commission should act as a unit, just as a court does. One of the most prominent dangers of the affair in the absence of a law or rule — assuming for the time that the two Houses possessed the power to count and decide — was that one House was likely, indeed, certain, to say that nothing should be counted as a vote that both Houses should not concur in allowing, and that the other House was equally certain to say that every thing should be counted that both should not concur in rejecting; and, even then, the puzzle of double returns would remain unsolved. This very point of difference had been the insurmountable one when, in 1800, Congress had attempted to legislate on the subject, and when no heat of excited interests came into play. In the second place, it provided that five members (one-third) of the Commission should be taken from a body of men learned in the law, withdrawn from active politics, and dependent neither upon the favor of the people, of Congress, or the Executive for the permanence of their official positions. So long as human
nature, and human institutions continue, prejudice and bias in respect of subjects of public concern will exist in every intelligent mind; but the framers of government have done their perfect work when they secure the agents and judges of the State from the direct temptations arising from fear of loss or hope of gain in the performance of their duties. If they still divide in opinion in coincidence with supposed bias, the justness of their decision cannot reasonably be assailed on that account; for the assailant himself may be presumed to have at least as great bias and as much prejudice, and no possible tribunal of review can be imagined, free from the very same infirmity it is called upon to correct.
The third and last characteristic of the act that need be mentioned, was one of the greatest importance to the justness and fairness of the law, and without which, it is obvious, no act could have passed. It was, — the unified Commission being formed whose decision should stand unless overruled by the concurrent vote of both Houses, — that the matters in dispute should be decided according to the law as it stood before the passage of the act. No new rule of law, either for the merits or the evidence by which the merits were to be ascertained, was to be created, whereby, perhaps, the citizen elected under the old law would be thrown out, and his adversary put in his place; but the lawful President was to be ascertained by the same law in every respect that existed on the day of the election. It will be seen by reference to the act that its language is specific to this end. The Commission was to inquire what persons and how many were the lawful electors in the States having double returns ; but upon the same rules of law and evidence, and no other, existing, and with the same powers, and no other, possessed by the Houses of Congress in such cases, before the passage of the act. As there was no act of Congress bearing upon the subject, save the single provision requiring the Executives of the States to certify lists of the Electors, and providing for a day of meeting, the Commission was at once remitted to the general powers of the Houses and to the Constitution, for the test and measure of its powers and duties.
It seems quite too obvious to need discussion, that the general powers of the Houses of Congress are those of passing laws upon the subjects enumerated in the Constitution, and that their parliamentary powers are of the same character. These powers have no relation to the act of counting the Presidential vote, which the Constitution commands to be done, but to providing by legislation for the performance of that act. If the pre-existing law had not provided for holding a trial and hearing proofs concerning the validity or result of the election, as courts of justice may sometimes do in a proper proceeding, neither the two Houses nor the Commission could lawfully do so, even if such a provision would be constitutional if made. It follows that the whole power of the Commission under the act to disregard the official action of the constituted authorities of a State, and to rectify errors alleged to have been committed by them, must be found, if it existed at all, in the words of the Constitution, that “the votes shall then be counted.” If the Constitution had declared in terms that the President of the Senate should count the votes, it is plain that his power of inquiry and review would have been as great; but can it be maintained that the power and duty of counting the votes officially returned involves the right to pass upon the qualifications of the Electors who cast them, or other like questions? For the present purpose, it is a sufficient commentary upon the power claimed by some for the Commission, that the chief fault of the State Boards it was asked to correct was, that they — under the language of the State laws far more ample for such purposes than that of the Constitution of the United States — had done the very same thing the Commission was pressed to do, namely, had gone behind the official returns made to them, and attempted to correct errors found or claimed to exist.
The broad question how far it is competent for the government of the United States, by legislation, to provide for inquiry into the action of States in choosing Presidential Electors is reserved for another part of this article. That no such legislation existed, and that the words of the Constitution as to counting the votes did not themselves authorize such an inquiry, was the opinion of a majority of the Commission, as it is believed to have been the almost universal opinion of the members of the Senate when the subject was under discussion in the years 1873 and 1875.1
1 Senate debates, Jan., 1873, on inquiry into elections in Louisiana and Arkansas. See also debates in Senate on bill to regulate the counting of electoral votes, Feb.,