The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1877-01-26

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least one half OF tho American people viii regard az
usurper, by act Of power which At least oLe-haf
gentleman thinks otherwise his Judgment differs from
mine to the influences which commend the truth 10
ss Of he
the power 10 determine those grave
questions OF law fact which may arise Ia determn
ing what votes have boon lawfully cast for President
and Vice President by Electoral Colleges. admit
that those persons who believe that tho constitution
requires the President Of the Senate all per-
form that once must deem this bill unconstitutional
I do rot expect the votes OF such person:
almost unanimous acquesccnce Of The senate and
House different construction, supported by cur
Daniel Webster and Abraham Lincoln. may induce
them the question concluded, ut least. 80
a' 20 ys one Of doun tbs NAV
perhaps, especially commend itself to those gentlemen
who have honestly changed their opinion on grave
question OF constitutional law In the presence OF o
great temptation Fortunate is that statesman TO
whom long settled and maturcd convictions are suf-
Hcicnt for the solution OF the ever new and various
problems OF hts public life
''who in the height OF conflict keeps the law,
In calmness made, and sees what be foresaw"
PRESIDENT or THE SENATE.
For myself these considerations mako mo deem II
incredible that the trainers OF the constitution. or the
entrust the power OF deciding these vast questions
TO the President OF the Senate subject to no control
OF the two houses Of Congress or me law,makng
that dreaded above all other things, tho usur-
patton Of executive ! pSwsr secqna sa they
would ordinarily be one OF the candidates whose claim
to the Office was to be decided They provided that
two persons should be voted for for President, OF
whom that one having the second highest number OF
votes become Vice President and President Of
the Senate. The President OF the senate, therefore
candidate for the Presidency OF the United
States. Their habit Of continuing the same persons
In public station doubtless led them 10 anticipate that
he would be leading candidate for the SUCCESSION
has in the past happened when Adams succeeded
Wasbngton whom Jefferson succeeded Adams, when
Van Buron succeeded Jackson and IN many cases Of
unsuccessful competition. The same suggestions apply
TO all where the Vice President Is candidate
Tor reelection As in Great Britain, from which
institutions derived Parliament for centuries has
regulated the inheritance 10 the Crown and determined
ali questions OF right 10 the succession. So in every
American State existence when the constitution OF
the United States was adopted, the Legislature
no nor or or counted the votes Of the people and
determined all disputes as to the popular
choice "As the Wee President" says Alexander
Hamilton s'may occasionally be a substitute Tor the
President, all the reasons which recommend the mode
OF election prescribed Tor the one apply with great II
othcr.'' There are three other theories with OF
which this bill is IN s sontl,ct;mF,rs'' that
The President Of the must o b count a
two houses, Of other provision by the law-making
power Second, that under the power expressly con.
ierred by the constitution upon Congress Ito mako all
laws which shall be necessary and proper for carrying
into execution the foregoing powers and all other pow
ers vese& by this constitution the government OF
the United States. or In any department or Office
thereof" the law making power may provide
method of counting the vote third that the power OF
the vote Is vested by the constitution in the
two houses voting separately The TWO houses OF Con-
gress are tho tribunal which, according to this b
the constitution il is lett undisturbcd. II it needs
tho forces OF the lawmaking power to confer It, this
bill conlers IT, The only case when any other aid
tribunal Is composed differ in their judgment Ger
talnIy II is within the making power to provide
what shall happen when the members Of
constitutional tribunal, composed Of men,
bers, evenly divided IN Judgment We
may surely provide by NV that Il the supreme
divided In opinion the judgment OF the court below
shall stand report OF referee shall be accepted
traitor It is agency inferior to the two
houses reporting to them its action, wholly
to ns to rss
advocate of the constitutional powers of the two
houses must concede that this bill comes within the
letter of the definition of tie aw-maklng power
of Congress- law necessary and proper for carrying
into execution the powers vested in the gov
ernment and any department thereof un-
by law for the where the two members Of this
tribunal, composed Of an even number ofthe House
Senate stand divided on any question: one to one,
houses O' to count the vote must believe that
should sno ' perish when tho not improbable case
should arise Of division IN sentiment between two
political bodies question OF law or fact which
should arise in counting the vote.
NO COMPROMISE.
Some gentlemen have spoken Of this az compro-
mise BILL There is not drop OF compromise In II.
do not moan that alter 1t found that the principle
OF securing able and impartial tribunal con-
formed 70 tine o, S,sd ano Or o. all
to details; but how can that man be said to CON-
promise who, having AUST and righteous claim asserts
1t, maintains II, Unorces It by argument and proof
yields jot or title of It before tribunal consti-
tuted us TO assure Its decision IN accordance with
humanity viii admit. / think justice aud right
are compromised when they arc submitted for their
decision to force. They are compromised whom they
only be maintained by doubtful disputed exercises
OF power. They never can be compromised
when they are permitted to stand before
surronndea by judicial safeguards invested with legal
authority by the law making power of the country.
Let 1t not be said that this reasoning implies that
truth and stand on an equality; that II makes
difference whether matters be cited right wrong,
provided only they be settled. II Is precisely be-
difference between the righteous result and its
tagonist, that we propose to submit the differ
between them but not to force not to heat and
passion but that tribunal VIII ich among all mcchan-
sms possible executed by law is liable
diverted from the truth. 1t is charged that this
mittee Is In the end, TO be made up OF seven
men who will of course decide for one
party, and seven men who, OF course, will decide for
the other and must call in umpire by lot; there
FORE In substance and effect, you are putting tho de-
cison OF this whole matter upon chance. If this true
was a TACT so Illuminating to the republican Con-
gress since II was inaugurated Of the members OF
national Assembly, tho wisest and best the
gravest judicial duty ever imposed upon man under
the constraint OF this solemn oath can there be
found all this SOdom not ten-nOt one to obey any
other mandate but that OF party. Far otherwise was
The thought of Madison, when, with exultant aspir-
alton, he commended the constitution to his country
mcn:-
In it may BIO doubtful which side justice
lies what better umprcs could be desired by violent
factions flying and tearing the State pieces
than tho representatives OF Confederate States,
not heated by tho local hamef To the
inlpartiality, of JUDGES they would unite the
affection Of friends Happy would IL be IL remedy
nfrmity could be enjoyed all foregng
project equally eectual could be established for the
universal peace Ut mankndJdmes Madison, in Tie Federal
ist ot No. 43
Bnt | especially repudiate this imputation when 1t
rests upon those members OF the commission who are
to come IRON the Supreme Court. 1t is there Is
possibility OF bias arising IRON old published opinion
there, and this however minute the bill seeks 10
place IN exact equilibrium but TIM small inclination,
II any, will, In my Judgment however be weighted
hundred o by the bias pressing them to preserve the
dignity power and weight OF their Judicial office be-
fore their countrymcn and before posterlty. They will
not consent by party division TO have themselves
their Court go down in history incapable OF the
judicial junction IN he presence of the disturbing eie