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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