But if it be found impossible to agree upon the formation of such a committee, then a resort to the courts should certainly be had. The public conscience must be satisfied that the person sitting in our highest seat of magistracy is there by a just title; and it can be satisfied of that, in doubtful cases, only by a judicial inquiry.
An act of Congress might provide either for the case of a double declaration of the votes, one by each House of Congress, or of a single declaration by the two Houses acting in concert. In either case the Supreme Court could be reached only by appeal, and the court of first instance might be either the Supreme Court of the District of Columbia or any of the Circuit Courts. The Court of the District should seem to be the most convenient, the most speedy, and the most appropriate, as being at the seat of Government.
For the case of a double declaration it might be provided, that if, upon the counting of the votes the Senate should find one person elected and the House another, an information should be immediately filed in the Supreme Court of the District, in the name of United States, against both the persons thus designated, alleging the fact, and calling upon each to sustain his title. The difficulty of this process would be how to expedite the proceedings so that a decision should be had before the 4th of March, in order to avoid an interregnum. But I think this difficulty could be overcome. To this end, the time of the courts engaged in the case should be set apart for it. The rival claimants would naturally be in Washington, prepared for the investigation. The evidence previously taken by the two Houses—for they would assuredly have taken it—could be used, with the proper guards against hearsay testimony, and any additional evidence necessary would probably be ready, if the claimants or their friends knew beforehand that a trial was likely to be had. It might indeed happen that the questions to be decided would involve little dispute about facts; as, for example, the present Oregon case. It should be provided that the trial must be concluded and judgment pronounced within a certain number of days, either party being at liberty to appeal, within twenty-four hours after the judgment, to the Supreme Court of the United States, by which the appeal should be heard and decided before the 4th day of March.
In case of a single declaration, and consequent induction into office, an information might be filed in the Supreme Court of the District in the names of the United States and the claimant, against the incumbent, and proceedings carried on in the ordinary manner of proceedings in the nature of quo warranto.
Any lawyer could readily frame a bill to embrace these several provisions. An amendment of the Constitution would not be necessary. The provisions would operate as a check upon fraud. They would furnish a more certain means of establishing the right. The objection that the courts would thus be brought into connection with politics is the only objection. But the questions which they would be called upon to decide, would be questions of law and fact, judicial in their character, and kindred to those which the courts are every day called upon to adjudge. The greatness of the station is only a greater reason for judicial investigation. The dignity of the presidential office is not accepted as a reason why the incumbent should not be impeached and tried. It can be no more a reason why a usurper should not be ousted and a rightful claimant admitted. The President is undoubtedly higher in dignity and greater in power than the Governor of a State, but the reasons why the title of a Governor should be subjected to judicial scrutiny are of the same kind as those which go to show that the title of a President of the United States should be subjected, upon occasion, to a like scrutiny. The process was tried and found useful in the Capitol of Wisconsin, and, for similar reasons, it may be tried and found useful in the Capitol of the Union. So far from degrading the office, or offending the people to whom the office belongs, it can but help to make fraud less defiant and right more safe, and add a new crown to the majesty of law. That triumph of peace and justice in Wisconsin has, to the eye of reason, given an added glory to her prairies and hills, and a brighter light to the waters of her shining lakes.
APPENDIX.
Observations of the Chief Justice Whiton, of Wisconsin, respecting the force of a certificate of canvassers:
"Before proceeding to state our views in regard to the law regulating the canvass of votes by the State canvassers, we propose to consider how far the right of a person to an office is affected by the determination of the canvassers of the votes cast at the election held to choose the officer. Under our constitution, almost all our officers are elected by the people. Thus the Governor is chosen, the constitution providing that the person having the highest number of votes for that office shall be elected. But the constitution is silent as to the mode in which the election shall be conducted, and the votes cast for Governor shall be canvassed and the result of the election ascertained. The duty of prescribing the mode of conducting the election, and of canvassing the votes was, therefore, devolved upon the Legislature. They have accordingly made provision for both, and the question is, whether the canvass, or the election, establishes the right of a person to an office. It seems clear that it cannot be the former, because by our constitution and laws it is expressly provided that the election by the qualified voters shall determine the question. To hold that the canvass shall control, would subvert the foundations upon which our government rests. But it has been repeatedly contended in the course of this proceeding that, although the election by the electors determines the right to the office, yet the decision of the persons appointed to canvass the votes cast at the election, settles finally and completely the question as to the persons elected, and that, therefore, no court can have jurisdiction to inquire into the matter. It will be seen that this view of the question, while it recognizes the principle that the election is the foundation of the right to the office, assumes that the canvassers have authority to decide the matter finally and conclusively. We do not deem it necessary to say anything on the present occasion upon the subject of the jurisdiction of this court, as that question has already been decided, and the reasons for the decision given. Bearing it in mind, then, that under our constitution and laws, it is the election to an office, and not the canvass of the votes, which determines the right to the office, we will proceed to inquire into the proceedings of the State canvassers, by which they determined that the respondent was duly elected."—(4 Wis., 792.)