is the remaining question. Hitherto, I have endeavored to state in a
popular manner the existing law, as I understand it. I will now ask a
consideration of the needs of future legislation. If there be anything
obscure in the present law, Congress has the power to make it clear;
if there be danger in our present condition, Congress can remove the
danger. There are various ways of doing it.
One is to provide for a judicial committee of the two Houses, to sit
in judgment, as if they were judges, and pronounce upon the result of
the evidence. The English House of Commons used to reject or admit
members, from considerations of party. Englishmen have thought that
they had at last succeeded in establishing a tribunal which would
decide with impartiality and justice. We should be able to devise
means equally sure of arriving at a result just in itself, and
satisfactory to all. The considerations in favor of a judicial
committee of the two Houses are cogent, though they may not be
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 significance.
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 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 the Supreme Court of the District 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.