conclusive. They are, the necessity of a speedy decision, and the desirableness of keeping, if possible, the ordinary courts out of contact with questions of the greatest political signifi

cance.

But if it be found impossible to agree upon the formation of such a committee, then a resort to the courts should certainly be had. The public conscience must be satisfied that the person sitting in our highest seat of magistracy is there by a just title; and it can be satisfied of that, in doubtful cases, only by a judicial inquiry.

An act of Congress might provide either for the case of a double declaration of the votes, one by each House of Congress, or of a single declaration by the two Houses acting in concert. In either case the Supreme Court could be reached only by appeal, and the Court of first instance might be either the Supreme Court of the District of Columbia or any of the Circuit Courts. The Court of the District should seem to be the most convenient, the most speedy, and the most appropriate, as being at the seat of government.

For the case of a double declaration it might be provided that, if upon the counting of the votes the Senate should find one person elected and the House another, an information should be immediately filed in the Supreme Court of the District, in the name of the United States, against both the persons thus designated, alleging the fact, and calling upon each to sustain his title. The difficulty of this process would be how to expedite the proceedings so that a decision should be had before the 4th of March, in order to avoid an interregnum. But I think this difficulty could be overcome. To this end, the time of the courts engaged in the case should be set apart for it. The rival claimants would naturally be in Washington, prepared for the investigation. The evidence previously taken by the two Houses-for they would assuredly have taken it could be used, with the proper guards against hearsay testimony, and any additional evidence necessary would probably be ready, if the claimants or their friends knew beforehand that a trial was likely to be had. It might, indeed, happen that the questions to be decided would involve little dispute about facts; as, for example, the present Oregon case.

It

should be provided that the trial must be concluded and judgment pronounced within a certain number of days, either party being at liberty to appeal, within twenty-four hours after the judgment, to the Supreme Court of the United States, by which the appeal should be heard and decided before the 4th day of March.

In case of a single declaration, and consequent induction into office, an information might be filed in some one of the Circuit Courts in the names of the United States and the claimant, against the incumbent, and proceedings carried on in the ordinary manner of proceedings in the nature of quo warranto.

Any lawyer could readily frame a bill to embrace these several provisions. An amendment of the Constitution would not be necessary. The provisions would operate as a check upon fraud. They would furnish a more certain means of establishing the right. The objection that the courts would thus be brought into connection with politics is the only objection. But the questions which they would be called upon to decide would be questions of law and fact, judicial in their character, and kindred to those which the courts are every day called upon to adjudge. The greatness of the station is only a greater reason for judicial investigation. The dignity of the Presidential office is not accepted as a reason why the incumbent should not be impeached and tried. It can be no more a reason why a usurper should not be ousted and a rightful claimant admitted. The President is undoubtedly higher in dignity and greater in power than the Governor of a State, but the reasons why the title of a Governor should be subjected to judicial scrutiny are of the same kind as those which go to show that the title of a President of the United States should be subjected, upon occasion, to a like scrutiny. The process was tried and found useful in the Capitol of Wisconsin, and, for similar reasons, it may be tried and found useful in the Capitol of the Union. So far from degrading the office, or offending the people to whom the office belongs, it can but help to make fraud less defiant and right more safe, and add a new crown to the majesty of law. That triumph of peace and justice in Wisconsin has, to the eye of reason, given an added

glory to her prairies and hills, and a brighter light to the waters of her shining lakes.*

*

OBSERVATIONS OF CHIEF-JUSTICE WHITON, OF WISCONSIN, RESPECTING THE FORCE OF A CERTIFICATE OF CANVASSERS.

"Before proceeding to state our views in regard to the law regulating the canvass of votes by the State canvassers, we propose to consider how far the right of a person to an office is affected by the determination of the canvassers of the votes cast at the election held to choose the officer. Under our Constitution, almost all our officers are elected by the people. Thus the Governor is chosen, the Constitution providing that the person having the highest number of votes for that office shall be elected. But the Constitution is silent as to the mode in which the election shall be conducted, and the votes cast for Governor shall be canvassed and the result of the election ascertained. The duty of prescribing the mode of conducting the election and of canvassing the votes was, therefore, devolved upon the Legislature. They have accordingly made provision for both, and the question is, whether the canvass, or the election, establishes the right of a person to an office. It seems clear that it can not be the former, because by our Constitution and laws it is expressly provided that the election by the qualified voters shall determine the question. To hold that the canvass shall control, would subvert the foundations upon which our government rests. But it has been repeatedly contended in the course of this proceeding that, although the election by the electors determines the right to the office, yet the decision of the persons appointed to canvass the votes cast at the election settles finally and completely the question as to the persons elected, and that, therefore, no court can have jurisdiction to inquire into the matter. It will be seen that this view of the question, while it recognizes the principle that the election is the foundation of the right to the office, assumes that the canvassers have authority to decide the matter finally and conclusively. We do not deem it necessary to say anything on the present occasion upon the subject of the jurisdiction of this Court, as that question has already been decided, and the reason for the decision given. Bearing it in mind, then, that under our Constitution and laws it is the election to an office, and not the canvass of the votes, which determines the right to the office, we will proceed to inquire into the proceedings of the State canvassers, by which they determined that the respondent was duly elected" (4 Wis., 792).

THE VOTE THAT MADE THE PRESI

DENT.

Pamphlet by Mr. Field, published in March, 1877.

Ar ten minutes past four o'clock on the second morning of the present month (March, 1877), the President of the Senate of the United States, in the presence of the two Houses of Congress, made this announcement: "The whole number of the electors appointed to vote for President and Vice-President of the United States is 369, of which a majority is 185. The state of the vote for President of the United States, as delivered by the tellers, and as determined under the Act of Congress, approved January 29, 1877, on this subject, is: for Rutherford B. Hayes, of Ohio, 185 votes; for Samuel J. Tilden, of New York, 184 votes"; and then, after mentioning the votes for Vice-President, he proceeded: "Wherefore I do declare, that Rutherford B. Hayes, of Ohio, having received a majority of the whole number of electoral votes, is duly elected President of the United States for four years, commencing on the 4th day of March, 1877."

Mr. Hayes was thus declared elected by a majority of one. If any vote counted for him had been counted on the other side, Mr. Tilden, instead of Mr. Hayes, would have had the 185 votes; if it had been rejected altogether, each would have had 184 votes, and the House of Representatives would immediately have elected Mr. Tilden. One vote, therefore, put Mr. Hayes into the Presidential office.

To make up the 185 votes counted for him, 8 came from Louisiana and 4 from Florida. Whether they should have been thus counted is a question that affects the honor, the conscience, and the interests of the American people. There is not a person living in this country who has not a direct concern in a just answer. Not one will ever live in it whose re

spect for this generation will not depend in some degree upon that answer.

The 12 votes were not all alike. Some had one distinction, some another. But, not to distract attention by the discussion of several transactions instead of one, and because one in the present instance actually determined the result, I will confine my observations to a single vote. For this purpose let us take one of the votes from Louisiana, that, for instance, of Orlando H. Brewster.

Brewster was not appointed an elector, inasmuch as he did not receive a majority of the votes cast by the people of Louisiana, and inasmuch also as he could not have been appointed if he had received them all.

HE DID NOT RECEIVE A MAJORITY OF THE VOTES.

It would be a waste of time and patience to go through the testimony taken by the two Houses of Congress for their own information, before they consented to call in the advice of the Electoral Commission. The evidence of wrongs on both sides, and the irreconcilable contradictions of witnesses, made President Seelye and Mr. Pierce, of Massachusetts, declare it to be impossible for them to reach a satisfactory conclusion upon the facts, and compelled them to break away from their party, and refuse to abide by the advice of the Commission. There are certain things, however, which we know beyond dispute, or about which there is and can be no controversy, and these only will I mention. We know that the number of votes cast in Louisiana for the Tilden electors, taking the first name on the list as representing all, was 83,723, but that the certificate of the returning board put them at 70,508, turning Mr. Tilden's majority of more than 6,000 into a majority for Mr. Hayes; and we know that the reduction was made by throwing out more than 13,000 votes of legal voters voting legally for Mr. Tilden, and that more than 10,000 of these were thrown out upon the assumed authority of a statute of Louisiana, which in terms gave the board power to throw out votes, upon examination and deliberation, “whenever, from any poll or voting-place, there shall be received the