New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1877-02-01
LETTERS FROM THE PEOPLE.
THE NEW TRIBUNAL.
SUGGESTIONS FOR THE SUPREME COURT-A LETTER
FROM TIE HON. JOHN JAY.
To the Editor oJ me Tribune

and its reported approval by the IreSidehl' AZ
though he is said not to approve of the principle Oh
the bill, will still require for its execution the assent
Of the four indges named in the act; and
their anticipated acceptance of the appoint
ment may involve considerations of no little
interest The two cases that have been cited,
of a chief Justice made special envoy, ana OF an
associate Justice sitting on a mixed commission, can
hardly be regarded as presidents in the present IN
stance, where the four judges, and a fifth TO be
chosen by them called upon to decide the
validity and extent of the powers Of the tribunal
This point involves various constitutional questions
bearing upon the rights of the States the powers OF
Congress- and the constitutional balances ntenied
to preserve the relations and protect the lndepen
dence of the legislative, executive, ana judicial
branches.
The able and distinguished Senatorial leaders by
whom the bill was advocated presented ingenious
and learned arguments show tie consttutionaiIy
of its provisions. and the approval of the country
has been invoked for the bill on the ground that 1t
VIII assure the election of either Gov. Hayes OF Mr.
Tilden by tribunal the validity of whose powers
if questioned by the opponents of the bill, was at
least clear to the majority in Congress by whom IL
has been enacted.
II is apparently under this supposition that the
tribunal is expected 10 enter promptly upon the
work of passing upon the disputed electoral votes
that it may decide the pending election, and convey
by its decision 10 one or the other of the candidates
a constitutional and valid title TO the executive
government of the Republic, with the control of the
national power, wealth and patronage.
The language, however of the act, far from JUS
tifving the idea that Congress either declared or
implied ITS own approval of the validity OF the act
frankly avows and apparently submits to the III
bunal its own doubt whether Congress actually pos
sesscs any part of the colossal authority which, in
case of its possession, Congress cOnfers upon the
commission.
The second section provides that all objections TO
any certificate vote, paper from state snail be
forthwith submitted 10 the commission, which, IL
adds shall proceed to consider the same with the
same powers. if any, possessed for that purpose
ny the two houses acting separately or together,
and bv a majority of votes decide whether any and
what votes from such States the votes provided
for bv the Constitution of the United States, and
how many were duly appointed electors III such
State"
The act thus notifies the tribunal that it has no
powers excepting those which Congress may have II
any," and that is the grand preliminary question for
tie examination and decision Of the commission be-
fore they can safely enter upon the Judicial ana
ministerial duties imposed upon them III reference
10 the electoral votes Ii Congress hasno power I'M
der the Constitution TO do what proposes that the
the commission has no power and its acts will be
void. The sixth section of the act seems intended
to save the rights of the parties who might be dam
aged by the conduct of the tribunal TO appeal to the
courts for redress.
These provisions of the act will doubtless suggest
TO the honorable Chief Justice and his associates
how far the participation of five members OF the
court in the execution of this commission might
impair or destroy the power of the court as the con-
stutional tribunal Of last resort to adudcate upon
the subject. Admitting that they would enter the
tribunal not as judges, nor even IS United states
officers appointed by the President, but simply as
private citizens, learned in the law and eminent for
their virtues and experience the vaidity Of the acts
of the commission may in time come before them in
legal course for final adjudication and the judges are
accustomed to avoid mngling in procedures, on the
validity Of which the Constitution intended them TO
sit III judgment.
If 1t should be clear that the five judges appointed
on the commission would by their action and de-
cison in that capacity unfit themselves for review
of that action rs members of the court, and thus
Gust the court from its rightful jurisdiction, that
feature of the may perhaps suggest to the
Chief Justice and his associates some further ques
tons as deserving of notice, even although they
should have been overlooked by Congress If. for
instance the new tribunal should propose to decide
without appeal on the disputed right of Congress to
count the electoral votes Of the States, ought not
the States generally to have the opportunity of
being heard on the general question, well as the
States of South Carolina, Florida Louisiana, and
Oregon, who are more Immediately concerned III the
disposition to be made of their votes in the late
election
Then again. if Congress- entertaining and admit
ting doubt of its right 10 count the Presidential
votes. can erect a tribunal of its own choosing, to
decide that point if the decision of the tribunal in
this ca Sc can be properly assumed in out Of Con-
cress 10 confirm the cOnstitutionality Of powers
which Congress held 10 be of questionable validity
and if the rcvisa of that decision appeal to the SUI
prcmc Court in pubic or private suits, shall be made
impossible by the Judges who JOIN the tribunal, will
the precedent thus established be safe one for the
future or will it be found in accordwith the intent
of the Constitution and the rightfu jurisdiction Of
the supreme Court :
Was it not to provide for such cases arising under
the Constitution and the laws of Congress, and in
volying possible conflict between the General
Government and the reserved rights of the States,
that the judicial power of the Supreme Court was
made coextensive with the legislative power, III
order that it might have the authority to decide in
all of ale ged interference with the Constitu-
ton
lifted above the turmoil of party strife and dwelling
in the pure atmosphere of law, VIII lnstlnctlVely
recognize the force of con slderatOnS when in other
weight when opposed by timidty. ambition, OF i'll
terest. 10 such a court, free from that fear which,
admitted into public counsels betrays like treason,
the American people will hold with confidence,
trusting the Ship of State when tossed by the waves
of faction TO what Washington called the sheet
anchor vi our Liberties. am Sir faithfully yours
No % Washington square. Jan. 20. 1877.