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Harper's Weekly, February 2, 1877, p. 82

The following is the report of the committees of the two Houses upon a method of counting the Presidential vote. The subject is so important that we print it in full:

     "We have applied the utmost practicable study and deliberation to the subject, and believe that the bill now reported is the best attainable disposition of the different problems and disputed theories arising out of the late election. It must be obvious to every person conversant with the history of the country and with the formation and interpretation of the Constitution, that wide diversity of views and opinions touching the subject, not wholly coincident with the biased wishes of the members of political parties, would naturally exist. We have in this state of affairs chosen, therefore, not to deal with abstract questions save so far as they are necessarily involved in the legislation proposed. It is, of course, plain that the report of the bill implies that in our opinion legislation may be had on the subject in accordance with the Constitution; but we think that the law proposed is inconsistent with a few of the principal theories upon the subject. The Constitution requires that the electoral votes shall be counted upon a particular occasion. All will agree that the votes named in the Constitution are the constitutional votes of the States and no other, and when they have been found and identified, there is nothing left to be disputed or decided. All the rest is the mere clerical work of summing up the numbers, which being done, the Constitution itself declares the consequences. This bill, then, is only directed to ascertaining, for the purpose and in aid of the counting, what are the constitutional votes of the respective States; and whatever jurisdiction exists for such purposes, the bill only regulates the method of exercising it.

     "The Constitution, our great instrument and security for liberty and order, speaks in the amplest language for all such cases in whatever aspect they may be presented. It declares that the Congress shall 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 the Constitution in the government of the United States, or any department or officer thereof.'

     "The committee, therefore, think that the law proposed can not be justly assailed as unconstitutional by any one. For this reason we think it unnecessary, whatever may be our own individual views, to discuss any of the theories referred to. Our fidelity to the Constitution is observed when we find that the law we recommend is consistent with that instrument. The matter, then, being a proper subject for legislation, the fitness of the means proposed becomes the next subject of consideration. Upon this we beg leave to submit a few brief observations. In all just governments, both public and private rights must be defined and determined by the law. This is essential to the very idea of such a government, and is the characteristic distinction between free and despotic systems. However important it may be whether one citizen or another shall be the Chief Magistrate for a period prescribed, upon just theories of civil institutions it is of far greater moment that the will of the people lawfully expressed in the choice of that officer shall be ascertained and carried into effect in a lawful way. It is true that in every operation of a government of laws, from the most trivial to the most important, there will always be the possibility that the result reached will not be the true one. The executive officer may not wisely perform his duty, the courts may not truly declare the law, and the legislative body may not enact the best laws. But in either case to resist the act of the Executive, the courts, or the Legislature, acting constitutionally and lawfully within their sphere, would be to set up anarchy in the place of government. We think, then, that to provide a clear and lawful means of performing a great and necessary function of government in a time of such public dispute is of far greater importance than the particular advantage that any man or party may in the course of events possibly obtain.  But we have still endeavored to provide such lawful agencies of decision in the present case as shall be the most fair and impartial possible under the circumstances. Each of the branches of the Legislature and the Judiciary are represented in the tribunal in equal proportions. The composition of the judicial part of the commission looks to a selection from different parts of the republic, while it is thought to be free from any preponderance of supposable bias, and the addition of the necessary constituent part of the whole commission in order to obtain an uneven number is left to an agency the farthest removed from prejudice of any existing attainable one. It would be difficult, if not impossible, we think, to establish a tribunal that could be less the subject of party criticism than such a one. The principle of its constitution is so absolutely fair that we are unable to perceive how the most extreme partisan can assail it, unless he wishes to embark upon the stormy sea of unregulated procedure, hot disputes, and dangerous results that can neither be measured nor defined, rather than upon the fixed and regular course of law that insures peace and the order of society, whatever party may be disappointed in its hopes.

     "The unfortunate circumstance that no provision had been made on the subject before the election has greatly added to the difficulty in dealing with it, inasmuch as many of the people of the country, members of the respective political parties, will, perhaps, look with jealousy upon any measure that seems to involve even the probability of the defeat of their wishes, but it has led the committee to feel that their members are bound by the highest duty in such a case to let no bias or party feeling stand in the way of a just, equal, and peaceful measure for extricating the question from the embarrassments that at present surround it.

     "In conclusion, we respectfully beg leave to impress upon Congress the necessity of a speedy determination upon this subject. It is impossible to estimate the material loss the country daily sustains from the existing state of uncertainty. It directly and powerfully tends to unsettle and paralyze business, to weaken public and private credit, and to create apprehensions in the minds of the people that disturb the peaceful tenor of their ways and happiness. It does far more -- it tends to bring republican institutions into discredit, and to create doubts of the success of our form of government and of the perpetuity of the republic.  All considerations of interest, of patriotism, and of justice unite in demanding of the law-making power a measure that will bring peace and prosperity to the country, and show that our republican institutions are equal to any emergency. And in this connection we can not refrain from expression of our satisfaction that your committee, composed of equal numbers of opposing parties, have fortunately been able to do what has been attempted in vain heretofore -- almost unanimously agree upon a plan considered by them all to be just, wise, and efficient.

     "We accordingly recommend the proposed act to the patriotic and just judgment of Congress.

  • George F. Edmunds,
  • Frederick T. Frelinghuysen,
  • Roscoe Conkling,
  • A.G. Thurman,
  • T. F. Bayard,
  • M. W. Ransom,

     Senate Committee.

  • H. B. Payne,
  • Eppa Hunton,
  • Abram S. Hewitt,
  • William M. Speinger,
  • George W. M'Crarey,
  • George F. Hoar,
  • George Willard,

     House Committee."

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