The sun. [volume] (New York [N.Y.]) 1833-1916, 1903-07-19
THE SUPREME COU RT.
MIR. JOHN BIGELOW CRITICISES
MIR. CHOATE'S RECENT
ACCOUNT or 1T.

In An Open Letter 10 Mr. ChOate Tie
Points Out an Instance when the Court
Permitted Itself to Enter Politics
and to violate the COnstltutiOn--The
Electoral Commission OF 1859 - Ii
That To ne q Republican Precedent
STEAA,ER SAvoIE,
June II, 1903 !
MY DEAR Mr.. CHoArE: The day before
I embarked on the steamer which is now
trying TO take me back to my native land,
friend handed me a copy OF the North
American Rsview for June to beguile the
t~dium Of my voyage, You will not be sur
prised that the last article in the number.
bearing your signature, was the first to
engage my attention. l was delighted
with II. / had never seen the merits Of
our Supreme Court of judicature az a part
Of our governmental system presented
30 fully, so clearly and so convincingly
before. Nor had ever pictured it in my
imagination, though member of its bar,
as the superb monument Of the genius
Of Ito trainers, which, as you present it,
II appears to be. One hears 80 much in
these days OF tho defects Of our public
institutions and Of the men who manage
them, that such capable and authori-
tative championship Of at least one leg OF
the constitutional tripod upon which our
governmental system rests is an example
which, sincerely hope and believe will
not be lost upon the country
Since, however, as the poets tell us,
Apollo did not keep his bow always bent,
and as no one but the Pope is supposed to
be infallible, you will not think it pre-
Stunning 10 an old friend il, before your adj
mirable paper takes its place in the canon Of
our Constitutional exegesis. whittier sooner
or later. II ia sure to gravitate, | call
your attention 10 two or three statements
made by you which without some fclairaoe
may be found by the historical student of
future generations little obscure, and a
possible provooation to unpleasant con-
tFoyersy, -"
You remind your readers that by the
Tenth Amendment OF our Constitution 1t
wac, expressly provided that the powers not
delegated to tho United States by that
instrument nor prohibited by the States
are reserved to, the States respectively or
to the people.
You subsequently and very justly add
that 4the Constitution and each Of its pro-
visions ID supreme over President, Congress,
Courts and States" and @the Supreme
Court ia Che final judge of the validity Of all
laws passed by Congress or by the legis-
lators of each of the forty five States when
brought 70 the test Of the Constitution Of
the United States, and of the legality Of all
official acts when brought to the same
test"
Now il so happened that in the centennial
anniversary year Of our national existence,
A. D. 1879, an election for President was
held. and two OF the prominent candidates
for that Office were Samuel J. Tilden. the
choice OF the Democratic party, and Ruther-
ford B. Hayes, the choice Of the Republic
can party.
When the time came for counting the
votes Of the electors II was found that the
Senate, a majority OF whom were Republic
cans. could not agree as to the number of
votes cast for the respective candidates
with the House Of Representatives, ma
.iority Of whom were Democrats.
The possibility of such difference had
not been overlooked by the founders of
our Constitution, and accordingly by the
following clause of it'd Twelfth Article it was
made the duty Of the House of Represent
tativas to choose the President in the fol-
lowing terms:
The person having the greatest number
OF votes for President shall be the President
il such number be majority of the whole
number Of electors appointed; and if no
person have such majority. then from the
persons having the highest numbers, not
exceeding three on the list of those voted
for ~ President, the House Of Representa-
tfves shall choose Immediately by ballot
the President n And il the House
OF Representatives shall not choose Presi-
dent. whenever the right to choice shall
devotve upon them. before the 4th day of
March next following, then the Vice-Presi-
dent shall act as President, as in the case
Of the death or other constitutional disa-
bility OF the President"
The mode of selecting the President in
the emergency presented by the disagree
ment Of the upper and lower house of
Congress- in 1877 is here shown to be very
simple one and ia stated in terms which
il would scarcely be possible to make more
explicit or more free from ambiguity.
Now. what happened commission of
fifteen was created. Three Republicans
and two Democrats were taken from the
Senate; three Democrats and two Republi-
cans from the House of Representatives,
five Judges from tho Supreme Court-a
majority OF the court, be it observed; two
Of these Democrats and two Republicans
named in the act creating the tribunal,
and the ffth to be chosen by these four.
He also was Republican. This tribunal,
consisting of seven Democrats and eight
Republicans, their political relations with
one exception officially recognized was
thus created and vested with such power
al Congress- could confer, TO supersede the
provisions OF the Twelfth Article of the
Constitution. to aistIrp the power vested in
the lower house Of Congress- TO elect the
President Of The United States and impose
him upon the people as its Chief Magistrate,
by d proceas unknown alike to the Consti-
tuition. to the traditions or the spirit of our
institutions.
Now I would ask you as one OF the most
eminent jurists whose voices have ever been
heard in the Supreme Court where, when
and how that tribunal OF any of it's mem
beers ever acquired the right to participate
in the deliberations of this commission,
organized to discharge duty expressly
imposed by the Constitution exclusively