THE REMEDY FOR A WRONG COUNT

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.

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