The Writings of Carl Schurz/To T. W. Ferry, December 3d, 1876


St. Louis, Dec. 3, 1876.

The complications in which we find ourselves involved at present are well calculated to impress two facts upon every candid mind:

1. That the result of Presidential elections may depend upon a very small number of electoral votes, these votes to come from States in a disturbed and abnormal condition; and

2. That the Constitutional method of counting the electoral vote, of deciding questions of legality connected with them and of determining the final result, has become a matter of dispute between interested parties. No doubt all patriotic citizens desire only to have the offices of President and Vice-President awarded to those who have been rightfully elected to them, no matter to what political party they may belong. As for ourselves, we have heartily and actively supported Governor Hayes for the Presidency, believing that his election would best serve the true interests of the Republic. But we deem it of far greater importance that the future President of the United States should have a clear title to his office than that he should be the man of our choice. We hope every patriotic Democrat reciprocates that sentiment. But how is that title to be established so clearly that it may stand above all doubt and cavil? We hear of charges of fraud, intimidation and terrorism with regard to the election in several States, as well as charges of sharp practice and illegal proceedings in the operation of canvassing boards, and there is reason to anticipate acrimonious party contests in the final counting of the electoral votes and the determination of the result.

The Constitution provides only that “the President of the Senate shall, in presence of the Senate and House of Representatives, open the certificate and the votes shall be counted.” As to the meaning of that clause there are grave conflicts of opinion. It is held by some that the President of the Senate alone is invested with the power to count the votes and declare the result, the two houses of Congress being mere witnesses to the act, without any authority to interfere. It is held by others that the two houses of Congress have power to direct the counting, and, if they see fit, to throw out the electoral votes of a State, but only by concurrent action. By others still it is asserted that an objection sustained by either of the two houses is sufficient to exclude the electoral votes of a State from the count. We have repeatedly expressed our opinions on these points and will not now restate them. But we desire to invite attention to the important fact, that the conflict of these theories is degenerating more and more every day into a struggle of party interests, and this at a time when the election of the Chief Magistrate of the Republic may depend upon a single electoral vote, and when the two contending parties are each in control of one house of Congress.

Already do we find active and influential politicians speculating upon the manner in which the power of either house of Congress can be utilized to promote or prevent the success of this or that Presidential candidate. Elaborate schemes are published by men of standing, setting forth how a condition of things may be brought about in which the country is to have two Presidents contending for the possession of the Government. By reckless characters the ear of the people is familiarized with the cry of forcible resistance and civil war. The alarm of capital and the stagnation of business are growing more distressing every day. Neither is the end of this harassing uncertainty to be foreseen. The counting of the electoral vote in Congress may bring us, instead of a speedy and conclusive settlement of all difficulties, only a more exciting struggle of party interests and ambitions, and instead of an election result universally accepted as legal and just, a National Government appearing as the offspring of terrorism or of party chicanery, a Government the rightfulness of whose authority may therefore be questioned, and whose very existence may give rise to long and dangerous quarrels. Certainly no greater misfortune could befall the country.

It is evident that, in order to avoid consequences so grave, the determination of the result of this Presidential election should be confided to a tribunal whose verdict will command universal confidence, and in order to command universal confidence in times of excited party feeling the tribunal should be as far as possible removed from party strife, party interest and party ambition. Only then will the impartiality of its judgment be generally and unreservedly believed in. Unquestionably Congress is not such a tribunal. There are, no doubt, men in the Senate and in the House of Representatives who in the discharge of important duties endeavor to divest their minds of all party bias. But on the whole inasmuch as the members of the National Legislature owe their places to the instrumentality of party organization, it is not unnatural that in many respects party interest and spirit should have a strong influence in shaping their opinions as well as their actions. It can scarcely be otherwise; and even supposing members to act upon motives ever so conscientious, their impartiality will not have general credit when in a matter involving party interests of such magnitude as the result of a Presidential election their judgment favors the candidate of their organization. But in a crisis like this the final verdict should not only be impartial; it should also appear so.

When looking for a tribunal fitted by its character and recognized authority to act as the great umpire of political parties in determining the result of a disputed Presidential election we find only one—it is the Supreme Court of the United States. In the debates which some time ago occurred in the Senate on a bill to regulate the counting of the electoral vote the idea was frequently put forth that, when the two houses disagreed on the reception of the electoral vote of a State or in case of the presentation of two sets of certificates from one State, on the question which of the two should be received, that question should be referred for decision to the Supreme Court or to one or more members of it. The only strong argument urged against this proposition was that the jurisdiction of the Supreme Court is defined by the Constitution and cannot be enlarged by a mere legislative enactment. The force of that objection cannot be denied. But there is still another way open. If both political parties agree that it would serve the great interest to remove this counting of the electoral votes from the theater of party strife and to entrust that important office, with power to decide incidental questions, to the highest judicial authority in the land, there is still time to secure the adoption of a Constitutional amendment to that effect before the day fixed by law for the counting of the electoral vote arrives. There are nearly three weeks before Christmas, during which a resolution to submit such an amendment to the legislatures of the several States may be discussed and determined upon by both houses of Congress. In January most of the legislatures are in session, and those that are not may be convened for the special purpose of considering the ratification of the amendment. To accomplish this great object action must indeed be prompt, but action may be prompt if both political parties coöperate in good faith to that end. There is probably no more powerful influence to bring about such coöperation than that of the two Presidential candidates themselves. If Governor Hayes and Governor Tilden both make their respective supporters understand that such is their sincere and urgent wish for the political good, that kind of opposition at least which may spring from party spirit will quickly yield in Congress as well as in the State legislatures. Thus the most formidable and dangerous obstacle would be removed and the two parties might harmoniously unite upon a measure most important for the peace of the country and the stability of our institutions. It may be said that it would be unwise, in haste and merely for the purpose of averting a temporary danger, to engraft upon the Constitution of the Republic a permanent provision which could not again be got rid of without great difficulty. But we are not here providing against a mere temporary danger. Unfortunately it is but too probable that from the condition of the country, as the civil war has left it, similar complications will arise in the future, not indeed at every Presidential election, but from time to time. Moreover every thinking man will admit that the makers of the Constitution, when framing that vague provision concerning the counting of the electoral votes, did certainly not foresee and contemplate the case of disputed electoral votes, and of a Presidential election depending upon disputed votes. Had they foreseen it, no doubt they would have provided for it more clearly and carefully. Even in more peaceful times when the result of a Presidential election did not turn upon a single State, the indefiniteness of the Constitutional clause caused now and then much embarrassment and perplexity. It is evidently not adequate to the more difficult circumstances at present surrounding us. A change is therefore decidedly and urgently needed, and if that change must be recognized as necessary why should it not be taken in hand at once to help us through the threatening dangers of the present crisis?

Neither can it be denied that such a change would fail of its object if it did not withdraw the counting of the electoral votes, and the determination of the result from the struggle of political parties, and that this can be accomplished only by selecting for this office a tribunal standing above all party strife. Thus the Supreme Court seems clearly pointed out by the necessities of the case. There is only one other question requiring answer: Will not the discharge of such duties draw the Supreme Court itself into the struggle of parties? We believe not. Only once every four years are the electoral votes to be counted. In most cases the result is beyond all question decided, and the figures universally recognized before the counting begins. Doubtful cases of great importance may and probably will henceforth occur more frequently than formerly, but even then they are not likely to occur more than once or twice during the average official life of a judge of the Supreme Bench. The exercise of great power in connection with that duty will, therefore, be of rare occurrence; so rare, indeed, as not seriously to affect the character of the tribunal while the possibility of packing the Supreme Court for special occasions may be prevented by suitable provisions in the Constitutional amendment.

We commend this proposition, which is by no means new and has already been discussed in the public press, to the attention of those who may exercise an influence in favor of its accomplishment. The end we have in view appeals to the patriotic feelings of every good citizen. It is the preservation of peace and of the moral authority of our National Government. That both are in jeopardy, nobody will question. To avert this danger now and also in the future the plan here discussed appears to us a good one. But its speedy execution depends upon the prompt coöperation of the two political parties, each of which would prove by its acceptance of this proposition that it has confidence in the rightfulness of its cause or that it esteems the public welfare above all else.

Carl Schurz,
John B. Henderson and others.

  1. President of the U. S. Senate.