The argument is sensible and exhaustive, the style clear, forcible and attractive and the whole tone temper and spirit becoming a jurist and statesman.

Very truly yours BENJ F. THOMAS.

Hon Geo F. h.o.a.r

FROM WILLIAM M. EVARTS, SECRETARY OF STATE; UNITED STATES SENATOR, ETC.

NEW YORK, May 22, 1876.

_My dear Mr. h.o.a.r,_

I am much obliged to you for sending me your speech, as manager, on the question of jurisdiction. I had seen it applauded in the newspapers and am happy to add mine to the general suffrage. It seems to me a very complete and able presentation both of law and reasons of State on your side.

My own opinions are strongly adverse to the jurisdiction, and I should greatly lament its maintenance by the Senate.

In ordinary times I should not suppose it possible, and I do not think it probable, now.

I hope the defendant's counsel presented the argument as satisfactorily from their side as you have done for yours. But I have little hope that it is so.

Yours very truly, (Signed) WM M. EVARTS.

The Hon'ble Geo F. h.o.a.r.

FROM JUDGE DWIGHT FOSTER OF THE SUPREME COURT OF Ma.s.sACHUSETTS.

BOSTON, 20 May, '76.

_My Dear Sir:_

I have read with satisfaction and admiration your exhaustive and conclusive argument in the Belknap impeachment case. It would have convinced me, if I had not been of your opinion already. In thought I doubted a little at first. My mind was soon satisfied that the narrow construction which left the accused to decide whether to abide his trial or by resignation to defeat the jurisdiction of the court could not possibly be correct.

Congratulating you on your success,

I am

Yours sincerely DWIGHT FOSTER Honble Geo F. h.o.a.r

FROM CHARLES DEVENS, JR., ATTORNEY-GENERAL, ETC.

WORCESTER May 18, '76.

_My Dear h.o.a.r_

I have just read with the greatest interest and satisfaction your speech on the jurisdiction in the impeachment case. It seems to me most able profound and convincing and I congratulate you immensely on the effort which is spoken of by all who have read it as most vigorous and successful. It could not have been better done.

Yours most truly CHAS DEVENS JR

FROM CHARLES ALLEN, JUDGE OF THE SUPREME COURT OF Ma.s.sACHUSETTS.

BOSTON May 18 1876

_Dear Mr. h.o.a.r_

Thanks for your argument in the Belknap case. Ma.s.sachusetts is very proud of what you have done in this case; and I, among the rest.

Yours very truly CHARLES ALLEN.

Hon. G. F. h.o.a.r.

CHAPTER XXVI ELECTORAL COMMISSION

When the Presidential election of 1876 was over both sides claimed the victory. When the certificates of the result in the different States reached the President of the Senate, in accordance with the requirement of the Const.i.tution and the law, it turned out that there was one majority for Hayes and Wheeler, upon the face of the returns, if the returns from the State of Oregon were construed in accordance with the Republican claim.

The Governor of Oregon gave a transcript of the record and declared his opinion that it showed one of the lawful electors to have voted for Mr. Tilden. That would have given one majority for Tilden. The Republicans claimed that upon the record the election showed that all the Republican candidates for elector had been chosen in Oregon, and that they had all voted for Hayes and Wheeler.

The Democrats declared that the boards authorized to ascertain and return the result of the election for Presidential electors in South Carolina, Florida and Louisiana had corruptly and unlawfully rejected votes that ought to be counted for them, and counted votes for the Republicans that ought not to be so counted; and had in that way changed the result which, if it had been correctly ascertained and reported, would have shown a Democratic majority in those three States.

The country was deeply excited. Threats of civil war were heard in many quarters. When I went to Washington for the session of December, 1876, while I did not believe there would be a civil war, and supposed there would be some method of escape devised, I confess I saw no such method. I now believe that but for the bitter experience of a few years before, with its terrible lesson, there would have been a resort to arms. It would have been a worse civil war than that of the Rebellion, because the country would have been divided not by sections, but by parties.

But, as I have related elsewhere, a majority in Congress agreed to submit the question to a Commission composed of five Senators, five Representatives, and five Judges of the Supreme Court, who, proceeding in accordance with an ingenious and skilfully devised mechanism, were to determine the case.

I believe that as time goes on, the great self-restraint of the American people in dealing with the momentous peril of 1877, and the constructive ability which created the simple but perfect mechanism of the Electoral Commission, will receive, as they deserve, the admiration of mankind. There was at the time, as would be expected, some anger and disappointment at the result. Occasionally some bigot who can find nothing but evil in the history and life of his country, generally some recluse who has little knowledge of affairs, charges the Commission with having wickedly deprived the majority of the people of the fruits of an honest and lawful victory.

But, in general, wherever I go I find that intelligent men of both parties are satisfied with the righteousness of the decision, and admit that a different judgment would have wrought the destruction of the Republic.

When the decision of the Electoral Commission was accepted every Democratic vote in the two Houses was against it, and every Republican vote, save two, given in its favor. Of these two, one shortly afterward left the Republican party and became a bitter and angry Democrat. The other, a most admirable and excellent college president, told me that he thought the Commission were technically right. But he thought it better for the effect on the country that the Democratic contention should be sustained. As if in a question of Const.i.tutional proceeding, or rather a question of Const.i.tutional power, a determination could be technically right, and wrong upon the merits. If Congress, technically, that is according to the mandate of the Const.i.tution, had no power to decide the result of the elections in the States, but that power was committed to State tribunals, how was it possible that any member of either House of Congress, who had sworn to support the Const.i.tution, could usurp that power without being forsworn?

Beside, it must be conceded by everybody to be utterly impossible that the power of investigating disputed questions, as to the choice of presidential electors by the States, should be exercised by Congress. There is no time for such an investigation by Congress. It could only be done where a few precincts or votes were in dispute, in places near the seat of Government.

It would have been impossible to do it in time for the inauguration of the new President before the day of railroads and telegraphs for any State in the country. It would be impossible now to do it in parts of the country distant from the seat of Government. The choice of electors takes place in November.

The result must be ascertained; the electors must meet; their votes must be given; they must be certified to Congress; the count must be made and result declared in Congress before the 4th of March, a period of less than four months. If there should be a contest made in each of the forty-five States, an investigation might be demanded for every election precinct in the country.

It seems to me clear that the power to judge of elections, returns, and qualifications of presidential electors is not given by the Const.i.tution to the two Houses of Congress, or either of them. The power which it was deemed necessary carefully to express in regard to their own members, it could hardly have been intended to bestow by implication from the right to be present when the certificates are opened, or even from the right to count the votes. It is a power which it is utterly impracticable for Congress to exercise between the time when the certificates are brought officially to its knowledge, and the time when it must be determined who has been chosen President. Indeed, the distinguished counsel who closed the case for the Tilden electors* conceded this difficulty, to which his only answer was the suggestion that such an inquiry, like the right to the writ of _quo warranto,_ must be limited by discretion; in other words, that the two Houses may go as far into the inquiry, who were duly chosen electors in any State, as they in their discretion think fit, or as time will permit.

[Footnote]

* Mr. Charles O'Connor.

[End of Footnote]

The statement of this position seems to be its refutation.

We are now discussing a question of jurisdiction. In whom is the power to determine who have been appointed electors --in Congress or in the State? It was gravely answered that it is in Congress when the State to be investigated is near the seat of Government, or the inquiry to a few election precincts only, but it is to be left to the State in other cases; that Congress may exert a power of inquiry into an election in Delaware which is impossible as to California, or may inquire into one election district in New York, but cannot into twenty or a hundred. This claim would never have arisen in any man's mind before the days of railroads and telegraphs. Such investigations, possible only to the most limited extent now, would have been wholly impossible as to most of the States when the Const.i.tution was adopted.

It is asked, is there no remedy if the officers to whom the States intrust the power of ascertaining and declaring the result of the election act fraudulently or make mistakes?

The answer is that the Const.i.tution of the United States gives no jurisdiction to Congress, when the certificates are opened and the votes are to be counted, to correct such mistakes or frauds. A like question may be put as to every public authority in which a final power of decision is lodged. The danger of mistake or fraud is surely quite as great if the final power be lodged in Congress, and the framers of the Const.i.tution acted in nothing more wisely than in removing from Congress all power over the election of President.

There was never yet a political party in this country, or in England, which decided ordinary election cases, except in the clearest case, on other than party considerations. In England and Canada it has been found necessary to commit to the courts the consideration of election cases. It is seldom that either House of Congress has resisted partisan temptation in election cases, when one seat only was the prize of the contest. Is it likely that public virtue would withstand the temptation of the Presidency?

The simple doctrine on which the Commission proceeded was that the right to determine absolutely and finally who are the duly chosen presidential electors is committed by the Const.i.tution to the States. The judgment of the tribunal established by the State for that purpose is conclusive on all the world. Congress is only to count the votes of the officials found by the State to have the right to cast them.

It is said that in the Oregon case the Commission departed from this principle, which they had acted upon in the case of South Carolina, Florida and Louisiana. But there is not the slightest truth in that suggestion. In all of those three cases the laws of the State had established a tribunal with absolute right to determine all questions arising out of the election. The tribunal had the right to reject votes, or count votes, according as they found the votes to be lawful or unlawful. They had the right to reject returns from election precincts where they found there could have been no lawful or orderly election by reason of violence, or where they found the returns untrustworthy by reason of fraud. This power they exercised, and from it there was no appeal.

On the other hand the laws of Oregon did not provide for a board of State canva.s.sers, but provided that the Secretary of State should canva.s.s the votes in the presence of the Governor, and prepare duplicate lists thereof, which lists should be singed by the Governor and Secretary. These lists, certified by the Secretary, were before the Electoral Commission, and disclosed the choice of Republican electors. The Governor, however, undertook to declare his opinion of the result. That opinion was that a Democrat was chosen who had received less than a majority of the votes, or to use the phrase of the Governor, "received the highest number of votes cast for persons eligible," because his Republican compet.i.tor was not eligible; and he, therefore, certified that the Democrat had the largest number of votes cast for persons eligible. That Democratic elector proceeded then to hold a meeting, at which he was the only person present, and as the two Republicans whom everybody admitted were lawfully chosen, did not meet with him, he proceeded to fill two vacancies himself.

The Secretary of State made the canva.s.s required by law, recorded it and filed it in his office. He made that canva.s.s in the presence of the Governor. He could not change it.

He could not tamper with it. He had completed his official duty when he had completed it. So that the Governor's certificate as to the effect of the election was of no more official character than a like certificate of the Governor-General of India would have been.