The sun. [volume] (New York [N.Y.]) 1833-1916, 1877-10-06
Mr.. A. RI. stephens on Haves's Title

AIR. ALEXANDER III. STEPHENS is a man of
ability, but erratic and often cxtravagant in
his opinions. His recent utterancc to n re-
porter Of the World concerning Mr. HAYES
title is one Of the most extravagant things
that even Mr.. STEPHENS has propounded
For instance:
"The que presented by the last election were Of
vital Importance We believed We had carried the cleo
ton. and suppose the Republicans thought that they
had carriedit II had to be settled by court by
II was serious crisis and for time feared Hut
the commission appointed and the question lc TO H.
II was the highest constituted IN this country
and believe II was perfectly constituted body They
decided the question OF course was disappointed,
we ali were IN the Democratic party at tie result hutl
look on MI iAYfs's title al ei,oti and therefore
better than the title Of preceding President They
all took their seats piar e but this has been
setted in the highest court ever known in tins country
The proposition that Mr.. HAYEss title is
better than that Of any preceding President
because 1t rests upon an adjudication by
the Electoral Commission, will not bear
examination. 1t is absurd to call that
commission n court, and IL is the
veriest absurdity TO call 1t the highest
court ever known In this country. Under
the Constitution, Congress could not create
a court with judicial power to determine
how the electoral votes for President should
be counted. The judicial power of the
United States is vested by the Constitution
In the supreme Court and in such inferior
courts as Congress may from time to
time ordain and establish. The highest
court known or that can be known
In the Federal Government is the
Supreme Court. All others must Of
necessity be inferior courts. The mere croa-
ton Of the Electoral Commission is proof
that fln aricfpf, an a.. a t,l
electoral certificates could not by any form
Of legislation be sent 10 the Supreme Court
for judicial determination. They could not,
for the same reason be sent TO any inferior
court for judicial determination, whether
1t should have been an inferior court
already existing, or one created for the
express purpose. The reason is that the
judicial power does not extend to the settle
ment Of questions involved in the counting
OF the electoral votes. Those questions can
never make " case in law or equity, arising
under the Constitution" They are commit
ted bya special provision Of the Constitution
10 the two Houses Of Congress; and they
can no more be devolved on court, for ju-
dlcial determination, than any other duty
which the two Houses have to perform.
Moreover, the Electoral Commission law
never affected TO create court. There Is
no such thing possible as a court Of the
United States created for temporary and
special purpose. The Judges Of all courts
OF the United States, both supreme ana in
feror, must be nominated by the President
and confirmed by the Senate, and must hold
their Offices during good behavior. The
members Of the Electoral Commission were
named by Congress; and the Commission
itself, regarded at its best was nothing but
an advisory body, intended by its trainers
and assumed byits members to be auxiliary
TO the two Houses OF Congress in counting
the electoral votes, by inquirlng how far
the powers Of the two Houses extended in
such counting. The law itself reserved to the
two Houses the power TO reject or to con-
firm the decisions Of the commission, though
by a cunning device, it required something
impossible, namely, the unanimous agree
ment OF the two Houses, in order 10 reject
them.
These considerations dispose 81 Mr. STE
PHENsS doctrine that IIAYEs's tito is
res ddJudicdtd thing judicially deter
mined, IN SENSE different from the titles Of
other Presidents. llAYIs's title has never
pceh acted upon by any court in the sense Of
judicial determination. II Is II title croatod
by calling for the advice Of a certain body
OF Commissioners, and then acting upon the
advice OF majority Of them in counting tho
electoral votes. The doctrines on which
that advice was based have no judicial sane
non whatever. II one can conceive 1t to
nave been possible for those doctrines 10
nave been sanctioned and promulgated by
inc supreme Court Of the United States
30 That they would be binding here
AFTER there would be reas n TO despair
OF ever again seeing u fair election Of n
president, II 1t were, in truth, adludlcatod
law that State officers can deal with
tAe popular votes Of their States, in ap.