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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.

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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

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

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