H. A. POPE TO TILDEN
"Columbus, Miss., Jany. 8, '77.
"Hon. Saml. J. Tilden.
"Sir,—Although a citizen in private life, I, nevertheless, feel, I trust, as profound interest as any one in the welfare of our common country. In its life it has had crises, but none more alarming since '60 than that which grows out of the Presidential election between you and Gen. Hayes.
"Of your election I do not entertain a doubt; and it were simply to render our beautiful system of self-government on the part of the people a burlesque and reproach to allow a set of gambling politicians to set at defiance the expressed will of the sovereign people.
"Of course we of the South are powerless in the premises, and were it otherwise I am not prepared altogether to suggest the proper course. At this critical juncture peace is more than ever a social and political necessity. But, then, how can we ever expect to preserve constitutional liberty if such a precedent—so violative and destructive of the distinctive and peculiar feature of our more peculiar system of govt., submission to the legally expressed will of the majority—is tolerated.
"To you, sir, I look for counsel, and I trust you will be endowed with more than your recognized distinguished sagacity.
"I have been very much surprised, and not a little amused, at the contradictory opinions which even the learned in the law and governmental science have given both as to the law and practice in the case of the counting of the electoral votes, and as to the ultimate tribunal known to the Constitution as the final arbiter in the premises. Cushing, the learned parliamentarian, and no mean statesman, has gone so far as to intimate Gen. Grant could, under certain circumstances which may exist, hold over after the 4th of March next and continuously—till, indeed, the succession transpires; and so teaches Senator Bogy in a speech in St. Louis.
"A fearful and most dangerous suggestion, verily! And amazing that it should ever have found lodgment and utterance from so distinguished a source. But it has not the semblance of law or the slightest approach to truth in it.
"Cushing reasons from analogy, and says because officers in many of the States hold over till their successors are installed he therefore sees no reason why Gen. Grant should not do so.
"The ready answer to this opinion, however, is very plain and fatal to the force implied in it. In the case of the State officer, he acts in the instance mentioned by express authority of law. But in the case of the President, he is elected for a term of four years, no more or less, and there being no enabling act authorizing him to protract the term a moment beyond the limitation mentioned, should he do so he would be a usurper and deserve death as such at the hands of any citizen. In the cases you at once see there is no analogy whatever, and hence Cushing is certainly mistaken. As to the force and aspect of the 22d rule or any other rule or rules, about which a volume has been written, in solving adverse views, a word or two disposes of them. They are these modes of procedure—centures of the private action of both Houses of Congress, adopted for their convenience and the harmonious despatch of business. But they are dead letters if they contravene the Constitution of the U. S. or attempt to execute any of its requirements.
"Laws are required for the purpose, and not rules. Laws to which all the departments of legislation are necessarily, by law, parties—Congress and the Executive.
"As rules, moreover, they bind only the particular Congress adopting them; and do not lap over, save by acquiescence, express or implied. Hence, as I've said, the 22d rule is dead till revived as suggested, and has therefore no application to the case between you and Hayes.
"But to the general issue. In the event it should be formed from any cause, real or supposed, and purely in the opinion and discretion of Congress, neither you nor Mr. Hayes has the requisite number of 185 electoral votes required to confer the office, then to my apprehension the 12th amendment becomes the law of the case—exclusively and supremely so.
"You are familiar with it.
"It refers the whole question to Congress, and if, upon a review of the facts in the case, if it should decide there has been no election and the two Houses can't agree that there has been, whether the disagreement is real or feigned, then the House must choose the President and the Senate the Vice-President.
"If you will carefully consider the amendment, with the history of the question of electing the President in the Madison papers, you will, I think, agree with me that Congress is empowered with power similar to the omnipotence of Parliament in the premises considered.
"When I remember the House is Democratic I rejoice greatly at the fact, and esteem it most fortunate for the whole country, for your election is certain.
"Although, sir, a very stranger to you, I am, nevertheless, a lover of my whole country—desire peace and the prevalence of law and order, and the perpetuation of constitutional liberty. And with the hope, possibly, of exciting in your mind a new and perhaps valuable train of thought upon the subject, I have ventured to write.
"If you find anything worthy of your consideration I shall be gratified to know.
"With the greatest respect and prayers for the prolongation of your life, I am,
"Your obt. Servt.,
"H. A. Pope."