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THE

AMERICAN

R E VIE W.

1877-1878.

EDITORS :

MOORFIELD STOREY,

SAMUEL HOAR.

VOLUME XII.

BOSTON:
LITTLE, BROWN, AND COMPANY.

1878.

Entered according to Act of Congress, in the year 1878, by

LITTLE, Brown, & Co., In the Office of the Librarian of Congress, at Washington.

CAMBRIDGE:
PRESS OF JOHN WILSON AND SON.

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In the winter of 1876–77 the government of the United States found itself confronted with the immediate presence of a new peril and a new problem ; from which peril, and for the solution of which problem, neither the Constitution nor the laws had provided a definite means of security or disposition, understood in the same sense by the two great political parties of the country, or even by jurists and statesmen of the most moderate views.

In the election for President serious and sincere disputes had arisen in respect to the bodies of Electors chosen in the States of Florida, Louisiana, South Carolina, and Oregon, and questions, more or less important, existed touching particular Electors in other States.

Whether Mr. Hayes or Mr. Tilden had been elected depended upon the disposition of these disputes and questions. The bias of party led nearly every Republican, without any study of the exact condition of the facts or the law, to believe that Mr. Hayes was elected, and the same bias and the same freedom from information and reflection led nearly all Democrats to the belief that Mr. Tilden had been elected.

There was a Republican President and administration, a Republican Senate, and a Democratic House of Representatives. There were many States with governments under Democratic control, and many under Republican management. There was between the two great parties in the country a mutual and ample supply of distrust and condemnation of each other; of the selfishness of those who desired to obtain offices, and of those who desired to retain them; and of that determination to grasp

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victory characteristic of a people accustomed to free individual action; and there was a condition of depression in industry and trade not well calculated to promote peace in a time of great excitement.

For this condition of difficulty, doubt, and dispute, the law had only to offer the bare equivocal words of the Constitution, that the votes of the Electors should be returned to Washington, the certificates opened by the President of the Senate in the presence of the two Houses of Congress, and that “ the votes shall then be counted," and the single provision of the Act of 1792, that the Executive of each State should certify the lists of the Electors chosen therein. In no previous instance had a question arisen that, however decided, would essentially affect the result. The famous twenty-second joint rule, which provided that no disputed vote should be counted, that the Senate and House of Representatives did not concur in deciding to be valid, and which had been in operation during three preceding Presidential elections, had ceased to exist.

In this state of things a wide diversity of opinion at once arose. The notion that the power to count, including the power to decide what ought to be counted, resided in the President of the Senate, had some supporters, and more opponents; but it could not be sustained upon the ordinary principles of interpreting written law. The words of the Constitution confessedly did not give it expressly. They only commanded him to do a physical act; namely, to “open all the certificates.” It was not declared either that he should count the votes or decide any question of law or fact arising in respect to them, or that he should not. Although it is true that the duty to do a purely ministerial act involves the necessity of exercising intelligence, and, generally, judgment, it is not that sort of judgment which is a definitive determination of the matter. The sheriff whose warrant commands him to arrest A. must decide upon the identity of the person named; but his decision that B. is A. has no force whatever, and B. may resist, and defend his liberty to the utmost. So in regard to the electoral certificates which the Constitution commands the President of the Senate to open. He, in a certain sense, must decide what is the document called for. He must open every certificate; but, if he open a petition or any other paper as a certificate, it does not make it a certificate for any purpose whatsoever. The argument for “ an implied power ex necessitate" was, perhaps, most pressed, and was, to a degree, plausible. Surely, it could be said, the framers of the Constitution intended that there should be an effective counting of the votes, and on the very occasion of the opening of the certificates, and so the President of the Senate must complete the performance. But those who admitted the necessity denied its application to him. They said that the two great political estates of the Republic, the Senate and House of Representatives, were the bodies to whom the effective power of the occasion was confided by the Constitution, if not in terms, by a necessary implication, springing not only “ ex necessitate," but from the general nature and functions of the two Houses, and from the specific duties imposed on each in the event of a failure to elect; and this view was supported by the analogous practice under many State Constitutions. The supporters of these views certainly had in their favor the historic practice of the government in every case of dispute that had arisen ; for, although in the earlier instances of Presidential elections the certificates stated that the President of the Senate had counted, &c., — the certificates being made pursuant to the resolutions of the two Houses providing for the counting and declaration of the result, — whenever, as in the cases of Indiana, Missouri, Louisiana, Georgia, Arkansas, and other instances, the affair became something beside a mere ceremony, the two Houses, without even a statute to provide for it, had, without question as to their right, assumed to decide by mutual action every question that arose. A large majority of the House of Representatives, and a large minority of the Senate at least, undoubtedly held substantially these views, while they were stoutly opposed by others.

For the first time in the history of the country, the Executive, Congress, and the people were brought face to face with a momentous election question, involving not only the immediate peace and good order of society, but the very stability of the Union itself. Without some settlement of it by methods to be agreed upon by both parties, it was morally certain that the Senate would declare Mr. Hayes to be the lawful President, and the House of Representatives would declare that the lawful President was Mr. Tilden. In that case, each of those gentlemen would have taken the oaths of office, and attempted to exercise

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