"COLUMBUS, MISS., _Jany. 8, '77_.
"HON. SAML. J. TILDEN.
"SIR,--Although a citizen in private life, I, nevertheless,
feel, I trust, as profound interest as any one in the welfare of
our common country. In its life it has had crises, but none more
alarming since '60 than that which grows out of the Presidential
election between you and Gen. Hayes.
"Of your election I do not entertain a doubt; and it were simply
to render our beautiful system of self-government on the part of
the people a burlesque and reproach to allow a set of gambling
politicians to set at defiance the expressed will of the sovereign
people.
"Of course we of the South are powerless in the premises, and were
it otherwise I am not prepared altogether to suggest the proper
course. At this critical juncture peace is more than ever a social
and political necessity. But, then, how can we ever expect to
preserve constitutional liberty if such a precedent--so violative
and destructive of the distinctive and peculiar feature of our more
peculiar system of govt., submission to the legally expressed will
of the majority--is tolerated.
"To you, sir, I look for counsel, and I trust you will be endowed
with more than your recognized distinguished sagacity.
"I have been very much surprised, and not a little amused, at
the contradictory opinions which even the learned in the law and
governmental science have given both as to the law and practice
in the case of the counting of the electoral votes, and as to the
ultimate tribunal known to the Constitution as the final arbiter
in the premises. Cushing, the learned parliamentarian, and no
mean statesman, has gone so far as to intimate Gen. Grant could,
under certain circumstances which may exist, hold over after the
4th of March next and continuously--till, indeed, the succession
transpires; and so teaches Senator Bogy in a speech in St. Louis.
"A fearful and most dangerous suggestion, verily! And amazing
that it should ever have found lodgment and utterance from so
distinguished a source. But it has not the semblance of law or the
slightest approach to truth in it.
"Cushing reasons from analogy, and says because officers in many
of the States hold over till their successors are installed he
therefore sees no reason why Gen. Grant should not do so.
"The ready answer to this opinion, however, is very plain and fatal
to the force implied in it. In the case of the State officer, he
acts in the instance mentioned by express authority of law. But in
the case of the President, he is elected for a term of four years,
no more or less, and there being no enabling act authorizing him to
protract the term a moment beyond the limitation mentioned, should
he do so he would be a usurper and deserve death as such at the
hands of any citizen. In the cases you at once see there is no
analogy whatever, and hence Cushing is certainly mistaken. As to the
force and aspect of the 22d rule or any other rule or rules, about
which a volume has been written, in solving adverse views, a word or
two disposes of them. They are these modes of procedure--centures
of the private action of both Houses of Congress, adopted for their
convenience and the harmonious despatch of business. But they are
dead letters if they contravene the Constitution of the U. S. or
attempt to execute any of its requirements.
"Laws are required for the purpose, and not rules. Laws to which
all the departments of legislation are necessarily, by law,
parties--Congress and the Executive.
"As rules, moreover, they bind only the particular Congress adopting
them; and do not lap over, save by acquiescence, express or implied.
Hence, as I've said, the 22d rule is dead till revived as suggested,
and has therefore no application to the case between you and Hayes.
"But to the general issue. In the event it should be formed from
any cause, real or supposed, and _purely in the opinion and
discretion of Congress_, neither you nor Mr. Hayes has the requisite
number of 185 electoral votes required to confer the office, then
to my apprehension the 12th amendment becomes the law of the
case--_exclusively and supremely so_.
"You are familiar with it.
"It refers the whole question to Congress, and if, upon a review
of the facts in the case, if it should decide there has been no
election and the two Houses _can't agree that there has been_,
whether the disagreement is real or feigned, then _the House_ must
_choose the President_ and the Senate the Vice-President.
"If you will carefully consider the amendment, with the history of
the question of electing the President in the Madison papers, you
will, I think, agree with me that Congress is empowered with power
similar to the omnipotence of Parliament in the premises considered.
"When I remember the House is Democratic I rejoice greatly at the
fact, and esteem it most fortunate for the whole country, for your
election is certain.
"Although, sir, a very stranger to you, I am, nevertheless, a lover
of my whole country--desire peace and the prevalence of law and
order, and the perpetuation of constitutional liberty. And with the
hope, possibly, of exciting in your mind a new and perhaps valuable
train of thought upon the subject, I have ventured to write.
"If you find anything worthy of your consideration I shall be
gratified to know.
"With the greatest respect and prayers for the prolongation of your
life, I am,
"Your obt. Servt.,
"H. A. POPE."