The New York Herald Newspaper, February 6, 1877, Page 3

THR GREAT ARGUMENT Messrs. Evarts and O’Conor on the Powers of the Commission. LEGAL FORM VERSUS THE MERITS. Republicans Anticipating a Victory on the Florida Case, DEMOCRATS DESPONDING Difficulties Regarding the’ of the Canvass. Opening | ATTENTION TURNING TO LOUISIANA. The Democratic Case as Prepared for Presentation. [FRoM OUR SPECIAL CORRESPONDENT, ] Wasatxotoy, Feb. 5, 1877. Tepublican claim fer Florida rests, by the al guments of Judge Matthews and others before the Elec- ‘oral Commission, not on the Governor's certificate and not on the majorrty of votes, but on the return made by the State Returning Board. The electors, said Judge Matthews, aro chosen by the people, voting at their precincts; the vote is consolidated by county officers and their consolidations are then reported by them again toa third and bighest and last returning officers or canvassing board, who, receiving these ro- turns from all the counties in the State, exercise the powers conferred upon them by law, and make that which in my judgment is the completion and the consummation of the appointments of she electors. Even if an investigation made after these electors havo acted should show that they were not the choico of the ma- Jority of the voters of the State, they would still be the proper electors, Judge Matthews held, and even if the electors thas appointed by the Returning Board, exercising the powers conferred on it by law, should mot have tho Governor’s certificate, they would still be the proper electors, ‘This statement, which is tho strongest and most precise yet made by the repablican side, is intended to cover Oregon as well as Florida, Itis probably in- tended to cover Louisiana as well as the other two, and there is a general impression it may carry Florida for the republicans before the commission, for it is acknowledged to be in many respects @ tenable posi- ton. The democrats will try to show the Florida Return. Ang Board acted in violation of law, but they may not Succeed to the satisfaction of the commission, and the argament that State wuthoritiss have no control over the electors after they have acted, and that, in fact, tho 6th of December, tho day on which they meet, con- cludes the whole proposition so far as State interfer- ence i concerned, is thought to be conclusive. Hence there has been eager discussion about the bear- ing of these propositions on the Louisiana case, which will follow that of Florida, Ifthe commission should on these grounds givo Florida to the republicans, ur, to speak more accurately, decide that certificate No. 1 is the true and valid cortificate, how would this affect Louisiana? Tose democrats who have most slosely studied the Louisiana case assert confidently if the commission shall accept the propositions laid down by Judge Matthews as fundamental aud correct, at must on those grounds either throw out Louisiana’s ‘Voto or give the State tothe democrats. The case is put in this way:—The republicans hold that the deci- sion of tho Returning Board, “exercising the powers tonferred upon it by law,” is final, and is the ‘‘comple- ‘ion and consummation of the appointment of the electors.” They could not hold less than this, it is said; they could not assert thatthe decisions of tho Returning Board in violation of the law creating it tould be efficacious. But democratic counsel will bring forward proofs when Louisiana comes before the commission intended to establish the following points:— First—That by the ctatutes of Louisiana the Wells Returning Board. had no authority or power to canvass the vote for Presidential electors, but that the Can- vassing Board charged by the State law with this auy consists of the Governor, Secretary of State, Attorney General and a district judge, or any two of them with the Governor; that, therefore, the whole action of the Wells Board, so for as it relates to Presidential olectors, ‘was @ usurpation of power and without authority of Jaw. Second—That even if the Returning Board had had the authority to canvasg the vote for electors this inust be done under the general law creating it and defining and limiting its powers, and that it violated thts law ip many ways, and thus made its action and decision Of no force or value. Third—That the law requires that the Returning Bourd shall con: of five persons taken from all po- tical parties, whereas the Wells Board consisted of but four persons, all republicans, who absolutely and Fepeatediy refused to choose a fifth, a democrat, as tl law required them to do. Fourth—That the law creating the Board, and from which alono it derives any power or authority, ox- Pressly declares that all protests for intimidation or other irregularities at the polls must be made within twenty-four hours, im certain prescribed torms, and ,) Must accompany the county returas, Unless so maue } the voto is not to be counted; but it will be shown that in many and perhaps most cases the protests did‘ ot so accompany the returns and were not made within ; the twenty-four hours, but often days afterward in +) New Orleans. Fifth—That the law requires the Board to canvass and compile the statements of the Commissioners of Elections, and that the Board, in violation of the law, declared themselves bound by the returns of the Su- pervisors of Kegistration, a different set of ollicers, Siath—It will be shown that in only oue case in the« whole State did the Commissioners of Election or tho 4) Supervisors of Registration send up to the Returning . Board a protest or statement alleging mtimidation in the ; form, within the time and in the manner required by law. In this single case in which intimidation wi charged im the proper form and time republican of- Qctals, 1t will be shown, alleged republican intimida- on, but the Board, instead of instituting tnquiry,, timply counted tho protested returns for the republi- 4 tan party. | Seventh—It wilt be shown, and, in fact, has been shown in a speech by General Gibson, that the vote cast in Louisiana Jast November was larger in propor- tion vo the voting population, and larger even in pro- portion to the registration, than in Northern States; that while Lilinois cast 100 votes to every 127 males over twouty-oue, Maine cast 100 votes to every 120 males over twenty-one, and New York cast 100 votes to every 118 mules over twenty-one years, the returns show Louisiana, with bad rouds and distant polling places, cust 100 votes to every 119 males over twenty+ one years, and that while the vote of democratic New Urieans was but slightly increased over 1874, the vote of the country parishes where intimidation was aileged ‘was increased over 1,400 jn two yours. Bighth—1t will be shown that in several o1 RBowurning Board passed a parish returo at the public ting as rogular and correct, but later, in their secret session, threw out the democratic majorities; thut precincts in considerable numbers were thrown out thus secretly, where the people at thir homes wore utterly ignorant of any charges against them, where ne protests bad been filed and where the local repub- lean candidates (as General Gibson has shown), thus counted in, absolutely rofused to accept the offices to whieh they frankly said they knew they were not chosen; that in one case, where the republican local politicians wore sending repurty of 4 riot and calling for troops, tho United States army officer on tho spot, in charge of troops, reported to his superior officers that the place wag as quiet asa Now England town; that 4m another case the Supervisor of Election in a parish, who had been manager of a snake shuw in New Or- Jeans, had removed to Mississippi, and was actually o member of the Legistature of that State while acting as Supervisor of Election in Louisiana, and that ho | arbitrarily flung out five procincts in the parish with- out cause, and thus threw out 1,147 democraticand 147 republican votes, In short an attempt will be mage to show that on the extremest ropublican theory, om the very ground on which Judge Matthews demands judgment for his side iu Florida, Louisiana must be given to tho demo- crate, or at the worst its vote must be excluded, THR ARGUMENTS. Mr, Evarts and Mr O’Conor delivered their argu- ments to-day, To-morrow the commission site with closed doors for consultation, Wednesday there may be adecision, though it is thought possible that the commission may hear turther argument, THR IMPRERSION to-night is that the republicans have the best chance. ‘They are elated, The democrats are generally de- spondent, They bad ses thor hopes on carry- ing Florida, and they fear that a disappoint. ment awaita thom, It iga general opinion that the democratic case has been weakened by the failure of the democratic counsel to define precisely the limits within which they would expect the commission to re- open the Florida case. [tis acknowledged that it is impossible to make anything like a recanvass of the votes, but where, precisely, tho commission shall stop if it begins, even Mr, O’Conm day leit to that body to decide, his argument beiug that In an action like this, in the nature of @ quo warranto, the Court could go as far into the matter as 1b chose, PROCEEDINGS OF THE COMMISSION. Wasuixaton, Feb. 5, 1877. The commission met at eleven o'clock, the question Pending being what evidence, if any, is before the commission relative to the vote of Flor:dain the re- cent Presidential election, and what ure the powers and duties of the commission in the premises, MK, BVARTS’ SPEECH. Mr. Evarts, for the republican side, said:— Ma, PRESIDENT AMD GeNTLEMEN OF THE ComuIS. s10N—The order of the commission in directing the at- tention of counsel lays out or thoir consideration three topios : Airst—Whether, under the powers possessed by tho commission, any evidence can ve received beyond that digeloged in the turee certificates from the State of Fiorida, which were opened by the President of the Senate 1p the presence of the two houses of Congress, and which, under the authority of the recent act of Congress, are transmitted to this commission ? Sccond—It any can be received what that evidence ts, Third—What evidence other thun the certiticates, ir any 18 now before the commission ? I will dispose of. tho last question, under the order of the commission, Bra, It requires but brief atten- tion to exprovs our views, aud will, I think, require but little consideration im time, however, important it may bein substance, from the commission, It is suggested that certum packages of papers, whicn were borne into the presence of the commission, by the messenger that brought tho certificates aud objections here, are alreauy evidence in the possession of the commission, What these packages cuntain, what degree of authenticity or what scopo of ellicacy is to be given to them as particular tatters of evi- dence and particulur forms of proot ‘are unknown tu us and unknown tu the commission, ‘Ihe proposition upon which 1t is claimed that this evidence, whatever it may be—sabject, undoudtedty, to the disc and to the rejection by the commission as not p nent and not important—is that which 1# ° men- tioned in one of the odjections interposed agamst tho first certificate, as matter on which the objection was founded, imstead of being =a warrant, us it were, — to the objector on which ‘he objects. He (tho objector) thereby mukes {t a part of the evidence vefure the commission, and our leurned friena Judge Black has proposed that, exceptms against objectors thut prevail in their acts and efforts in common jaw courts, and whom has been good enough to designate as “snap- peradoes,”’ thts evidence is by authentic principles of jurisprudence mude evidence by this attachment to the cer » Hednstancea dilie mequity whieh may have attendunt exuib: d which, of course, bring the nibits as a part of the case mtu the possession of the Court. If there were no objection the care sald wo bo provided for the exercise of your authority is not pro. duced. If the objection is nade (however tuartificial or impertect) the case bas urisun, but the objection narrows and limits and provides the tssue, and the law upon which your jurisdiction attaches is a pure fabrication out of utterly unsubstantial aud immaterial Suggestions in the law, Certainly, it volunteer objectors on one side or the other were permitted to lay down the issues and adduce the evidence aud make up the packages of the evidenco it would be a strange commit- meut of u great authority to casual, to rash, to d: genuous suggestors, So much, | think, entirely dis- poses of the question of what there is In evidence here, ‘THK COMMITTERS’ TESTIMONY, The other question as to whether evidence io possession of either house or both houses of Con- gress, in the shape of committee reports or con- clusions of either of these great bodios in any orm, 1% transmissible and may be proposed to this con mission, and may be accepted and received vy it after it is* unfolded, alter it is under- stood, after the claim is ‘utinized and opposed, 18 = question «that is but subordinate part of the main question, whether any evidence beyond the cortificaes can be received, I wish w preclude at the outset anything to inpress or to curry for a moment the iinpression that there bas been over- passed by some astuteness and some diligence (he question as to what you receive and what you reject, 1 dna myself, then, unimpeded in the inquiry, us vpen to me as Lo you, whether any evidence can be received, and if uny, what beyond the certificates opened by the President of the Senate, On tuat question I ny think it quite attentive to the instruction of the com- mission and mucl ure suitable to practical and definite determination by this commission that what- ever of generat principles and howveer far-reaching the decision on those general principies in this matter oft evidence muy be, the evidence that it 1s Proposed should be taken as the apparont limit of the inquiry whether that evidence should be received, uot from any particular § dis- cord as to the jorm or manner of proffer, bat as to whether 11 falls within the evidence that may be received extraneous to, in uddition to, the Vice Fresi- dent's certificates—tnose opened by bim—and I am enabled bythe memorandum presented by the learned counsel (Mr. U’Conor), found om the forty-second page of tho Congressional Recurd, of Suturday, to present the quality und character, the oflice and effect of extraneous evidence that it "is supposed “served and entertained by It. might be (within the powers of this commission) re- In the urst pluce, he of consideration one of the hat which contains the vote of they need no other proof excludes from the ar ertificates—to wi the Tilden olectors; concerning it, aud itt tioned only that it may be excluded. Second, there are statements concerning the quo warranto suit in Florida, commenced on the 6th of Decemver ana endi on the 16th of January; aud in regard to that (the record bein supposed to contuin in its Use prudence as a Kested that extraneous prvol only would need to reach | 4! the on t tion Was served, and ov our part, perhaps, prove that | itself the oppertunity and means of according to establisbed rules of juris- record or an authority) point of proving the preciso hour of the day pe 6th ou which the writ commencing that ac- un appeal had ‘been taken und Was pending trom tbat judgment; there are en that requir proof, a8 supposed, Again, the actions of the Legislature are public acts aud matters of record, and it 1s supposed that they aro revularly before the commission, so far at least ag they appear im the third certiticate by virtue of that trans- muasion, and, besides, 1 suppose that they are matters of pubiic record as the action of the Legislature of the Blate. ' u (Conor already which the Huyes elve f wholly te return Mr. Evarts here read the memoraudum of Mr, Fred to us follow: whieh the Titd clectors desire ene of the fo) ny counthes (naming the he said State Board acted without Jurisdict reuit Court and Saprome Court in Florida decide ‘That 1s the recent judgment in mandamus and quo warranto, Continues reading :— ting aside ns not warranted the courts of Florida reached t Drew wus elected py the Tilden electors except duly wut he State canvass, That is, as Mr. O’Conor adds, “the erroneous can- cated copies of vass as we cousider it.” Mir, O’Conor—That 18 your canvass, I said, “The erroueous canvass, as We consider it,’ language, Mr. Evarts—I so understand, | was using your You interposed that remark werbaily in wa- divion to the written part, « extraneous # the | and that ts claimed is open to your consideration, Mr, Evarts forshed (he reading, as follows:— And of the returns from the above named four counties, wholly wnd the others in part rejected by said stave nvassers. Now it as the matter to introuuce is proposed, thar itis therefore, desired hot that the certilicute of Governor Stearns falsiles Fecord that makes the of the fact which he is to certify to, but that the record at tho timo on which by law he was to certificate, departing from which his certificate would be fulse, 15 itself to be penetrated or surmounted by extrancous proof, showing that by matter of substance in th progress of the election crrora or frauds were mad that isto say, that »omewbere in the steps between the deposit of the ballots in the boxes in the precincts and the original computation of the contents ose boxes there, and the transinission to a correcti Vass ip a counting of the precincts thus can at their own ballot boxes, or between the returns of the county canvass to the State Canvussers, or am the action of the State Canvassers in tho unal =«computation ot the aggregate §=—_ to uscertain the plurality of votes as for one or tho otber candidates, and so declare, and so make record of, #0 Ox the basis of the Governor—whi bat act was right or wrong on their part, fraudul erroneous in law, or in that somewhere in the procesa of the clection itself, from stage to stage, on the very mat- of right, and the question of righitul title or title le jure, there hus occurred inatter tor judicial consid. eration; for] neod not say, that however simple and however limited, the step to be taken the record of the State cauvuss to serve the needs and to accomplish the justice as proposed by the learned the facts he hus certified to, mot that it falsifies the | counsel for the objectors against the Hayes certificates, the principles upon which it in offer if there were occasions which required it, If justice required it, if the | powers of this commission tolerated it, would carry It to whatever point this correction or thi evisceration of the final canvass is to be attempted. [ am at once, tore, reiieved from any discussions so ICAL this case. % so fur as illustration of argument may wake it usolul pro or con, of any consideration. I say, whether a Governor's certificate could be attacked as soit being not a Governor's certificute, but a lorgery, that is vot going bebind a Governor's cortitl- cate—that {8 conung in iront of a Governor's certitl- cate and breaking it down, as no Governor’s certificate, That 18 not the question we are to consider here, ‘There 1s cortainly nothing in the principle that when ® Governor's certificate ts required for any form or solemnity of conclusiveness of authentication, a forged pauper should be called a Governor's ‘hia introduces bere no inquiry, In tl a8 to whethor the cortilicate 18 the Go it is sug | merated some other matters | cate that the act of 1792 requires, Ht proporition suggest aay debate as to whether the fact to be certi u Governor—the sub. stance that his co is to authenticate— fe = =to) =6©beo)|=Comade th matter of = extra- neous evidenco to .show that the tact to be certified is discordant with the certiticate, aud (hat the tact must prevail over the interpolated false certillcate of the fact, There cau be no escape from that proposition, unless our learned vpponents ask your agsemt to this claim, that when the uct of Con- gress requires this cortiticate as tothe list of persons who huve beon dlected, they required trom the Gov- ernor u certiticate that evory stago and step of the process of the election has been bonest and tru rund lawiul; because unless you make the fact to be certified you + no opportunity to imtroduce evidence on the basis of dis- cord be mn the fact to be certified and the tact which has been certitied, Without disguiso theretore, the Proposition is that, whether or no there might be oc- casions for extrancous proof to falsity » Governor's certilicate, either on the ground of its own spurious character or on the ground of its falsely reproducing the lact protessed to be stated, admitting the Gov- ernor’s certificate to be genuine, admitting the canvass as of record on which ho was to discharge this ministerial function to accord with his charge of i, and that you are at a stage of inquiry and on right of inepecuon, which, treating the Governor's vertiticate as actua! and as rightful ou the record beture him- to wit, tho completed election— You are now to investigate the election itself as matter of proof by such methods as the law pormits and with adequate powers, There is one other suggestion in the objection, and that is about “extraneous proois,’* that Mr. Humph- reys, one of tho Hayes clectors, held vilice under the United States, and in our behal!t it ts then suggested by the learned counsel that we might introduce evidence that Mr. Humphreys ' had resigned, ‘The interposition of this objection was | @ surprise to as, for 1t was a matter of inquiry before the Florida State Canvassing Bourd on the 4th day of December, 1876, antecedent to their flaal and con- | clusive cabvass and evidence then taken. { am able | to read from page 32 of the ecord of Saturday in the report of the Minority Commitice:— Kxtrnet trom testimony befure the Floridy State Canvass- Board, Menday, Decomber 4, 1870:— ft. Mutipbreys, sworn. Q. “Are you shipping Commissioner for the Port of Pen- saculuY A, Lam not. Y. Were you at one time ? A. I wus at one time, ; Wheat A. Previous to the 7th of November. . Whut time did 1 A res woel Any being que: letter to mo that the Collector of Customs would periorm the duties of the office, aud the Collector of Customs hus sinew done so, DISQUALIFICATION. Now, onthe nature of an objection for disqualifica- tiou us a subject of proof requiring 1s production, 11 order thut the two houses, or the President of tho Senate, in either attribution of wuthority, under the clause of the constitution governing their joimt meun- ing, « Word needs to be said, J will attempt to avswer the suxgestion in the form of inquiry made very per- tinently and forcibly by Mr. Commissioner Thorman the other day. As 1 understand the matwr— and will not repeat of anticipate a discussion that must come tater in = du form on wy part im this argumeut—thero is a consid. eration in this case of whether the houses of Congress in the matter of the count, or the President of the Senate, if he have authority at the time of their meeting, for tho couatitutional duty of opening and counting the votes, bas any power accorded by law tor any intervention of the methods of proof, Whatever may be thought om the question of whotber this sub- Joos Of disqualtication of this nature was proper ior the scrutiny of the voscs to be counted, and however proper it might have beon for the acts of Congress to ‘provide for the production of proof in that transaction, and for the mannér in which it might be 1d, there is No uct of Congress on , and OUF proposition is that at that singe of the transuction of the election Congress, the two houses and the President of the Senate cannot enter- tain that subject of proof, that the process of counting mast go on, and that it a disqualified clecior Las passed. the odservation of the votors in the State, passed the observation of any sentinels or guards that may have beon vprovided in the law for excluding from actual lection or Jor annbuiling of au apparous right, if this disqualifica- tion should be inude to appear, that when these are all ‘auds on the presentation constitution, which 18 the certilicate of the electors themselves, und on the act of Congress, it must stand unchallengeable and unin. Peachuble there, Of course the provisional moaus of Inquiry at that stage of Congress, if they had thought ft to provide any, would have imvoived the delays of such an inquiry. ‘the proof of the inirmity and the proof of removal are mutters ordinarily manugeable; per- haps in potot of time not leading to prolixity, but in Supposable cases involving the contradiction of wit- hosses and discussion us to the effect of testimony. Now, Mr, Commissioner Thurmwun asks the question. Suppose the electoral return, when opened, disclo: the fact that the four electors were then present mem bers of Congress, and bad been s0 at the time of the appointment? That involves an element. you per- ceive, hot touched by the considerations that belong to prool, That impeachment of qualitications in the electors supposed ts of ocular and personal observation at all times of the President of the Senate und of the two houses of Congress, and of the recora of the nauon at the Capitol, and if the instance ts merely that a member of Congress exciuded in the lst, and not presently a member, and involving by extraieous root Whetuer Or no, a8 of & corti date, there bad en completed an act of his retirement irom the office, and so the disqualification did uot exist mm tact; Aen the case im which the Congressman is used as an instance falls back iuio the class of cases whero there has been co provision jor extraneous prool, aud while the ollice uccurded to the Governor's certificate is not required to Le overpassed by extraneous proof to bis certilicute, but by transcendent and present evidence of the disqualitication of the members of Congress, there i#, ué wo suppose, no sale rule, except to gay that this injunction iaid upoo the States that they shall not mclude in their uppoimtments the proscribed, oxcluded persons, does not execute itsell under the Constitution, and if unexccuted in the law of the State, only to be executed by the laws of Congress providing @ means of time und place of exe- cution, Now, | have said that this tribunal cannot receive eviuence in addition to the certificates of the nature of that which is offered, that 18, evidence thut goes be- yond the State’s record of ita viection, which has been certitied by the Govervor as resulung in the appointment of those ciectors. Ono reason of this proposition, and on which suiliciently tt rests, 18 that there 1s a judteil inquiry into very matter of right, the title to office, for it wccepts ay its tunction he prevalence of the former, the certilicuted, the re+ corued title of the electors, and proposes then to in- quire as inter partes, and the matter of right, which of the two competitors are reully elected on an honest and searching investigation. It undertukes an vitice that is Judicial, and the powers lor tts exer are at- tempted to bo Invoked in favor ot those who support that view by the necessity of the exercise of the imputed power requiring adequate means, What are adequate means? Adequate means for that mvestigation in that nature of right and inquiry are plenary means, ‘There aro no means, Judicial, that wre adequate for that inquiry that wre’ not plenary; and no pienary judicial powers can be communicated under our const by Congress, to say nothing of minor powors that aro judicial in their natare, except to trie bunals that are Courts, trivunals that are inferior to the Supreme Court aud that are filled by judges ap- ere; he stated in b pointed by the President of ‘the United 3 and contirmed by the Senate, Will muy or inexpert, meni or in ure, of jurisprud volv: ¢ possession of larger means of reach ni) nore complew control of powers and methods than the trial of aquo warranto tor an office—that is to search an eciection? But, pot only is it beyond the power of Congress to transter the powers of this law to {his Commission, the powers ot a court of this pI reach and efficiency, but, on the top of quo wari y to try the title of an officer, they would tind a subject Mm regard to which the constitution had interposed an insurmountable barrier to the constitution of a court hike this, 8 4 matter and an action Jay It in. volves as matter of introduction of a jury into its methods. the No caso of contested election Was over tried under tho sense of the States’ use of the Proper tribunal without a jury, but the provision here os that in every action of u certuin umount of dignity right the right of trial by jury shall ex:st and the verdict shall never be examined except by the rules of com- mon law. Now, can 1t be said that judicial power here and jud power originating under Congressional authority to muke courts is the source of this au- thority claimed? Theso are impediments that cannot be surmounted, PRECEDENT CITKD, NEW YORK HERALD, TUESDAY, FEBRUARY 6, 1877—TRIPLE SHEET. lation to the present, to the case of Groome vs. oy. to the 43d Maryiand Reports, be; ing at page S72; the subjects interesting bere and especially. begs: think, at page 624, to show that this argument that a duty supposed to exist by attribution of law, or stitution, must tunctionary hb its exercise ull the powers necessary | argument that the duty must involve th ), finds no place in our jurisprudence. gument has to be the other way. If the iunctionary of the commission has not been elothed with those wutborities, thea the duty 1s not accorded or the means of its exercise are not furnished, and s0 1 cannot be discharged. In the caso of Groome against Gwynn the Governor bad by the constitution, a was claimed (and was held by the majority of the court, the F to determine the contest for the office of Attorney Geveral for the State of Maryland, and the Gevernor, nding by bis own inspec: fon of the testimony that he lacked the means of earryiug out the scrutiny that held that he could no rcise it, and he would not exercise it unless judicial authority imposed it upon biw; and, assuming that the claimant against the final canvass had the mere right and that the Governor was made an authority to conduct a contest, he hud no powers of subpena and bad no provision for taking proof; and the Court of Appeals, ov an application tor Mandainus to compel the Governor to undertake that constitutional duty, beid thus he was vested by the constitution with an authority to be the contesting tunctionary, but that the laws of Maryland bad not executed the constitution to fursish him with powers to pertorm the duty assigned to hi MdaMUs Must GO Against him to deliv riifleates to the man who op the vorrupt ca ing the majority, and that the iminary contest that might have becn made effectual to excinde the wrong mun because ot a wroug Canvass must bo postpoued to the Judiciary powers of the State, lodged in tho courts in the shape of a quo Warranto on a dispute with the inducted ‘candidate thatthe Governor might or would bave decided not to be ontitled to the office. This bears upou both branches of the consideration :—First, upon your assumption of your powers from your having a general duty; sec- ‘ond, upon the consideration of whether u duty as signed to the Governor, a8 of his official transaction winisterially, will not be compelled always, ny it'was there, by courts of justice to lay the founda: ou of the discussion of the writin the courts of jus- lice, 1 find tm this act of 1877 no such purpose in the arrangement with powers us to make it court under the constitution, { find no appointment of these Judges to this court under the powers of the consiutu- tion. 1 Hud no means tor writs and their entorcement, nor for the methods of trial;, that must belong to a discussion of a quo warrant Now I understana that the proponcate of this proof lay out as tho end and the Iniits of your inquiry, and of your duties and your | powers, that of a judicial investigation upon a writ of quo warranto. Mr. Representative Fieid assigoed to you what he described us powers at least us great as that of » court on a quo Warranlo, and of course, in that nature, Mr, Merrick claimed the same, Judge Black did nos in torms do 80; yet in assigning the na- ture and the searching character of the transaction that you execute he gave it that character and im- plied that demand, and the brief banded in (in the praiso of which [ um happy to join with the learued associates of Mr, Green) makes the elam distioctly that you are not adequate as a revising can- Vussing board, but you must have the powers of a just decide, court on quo ‘rant, This quo warranto suil, if it be- comes a subject of evidence, 18 mattor of evidence that declares absolutely on the ition of the Tilden electors that the Hay electors are in posession of the faculty, tne office (or what not 1 may be) and are — exercising at, and they ask that an inquiry may then proceed in dhe course of law, bringing them in only by procoss on the 18th of December, long after their vote, to in- quire whother that possession and that exercise, as matter of right between them and the Hayes electors, 18 oF 18 not according tu law aud truth, LAWS OF FLORIDA. The commission will be good enough to look at an act, not reprinted in the little collection of ucts so usetully laid belore us (and naturally uot to ve re- printed in that), an act which otherwise may oscape attention or take some labor to find i, It is the act of February 2, 1872, in the Laws of Florida (Session ‘laws, page '28) In. re- lation to the proceedings on writs of quo warranto. The general siatutes that you flnd in the collection exclude acy possible writ of quo warranto, except b: the “State, through the act of the Attorney General, and this quo warranto reported bere begins by evi: dence that the Attorney General retused to bring the writ for the State, That led to an inquiry now it happened it was brought, and [| found this land, which | will briefly state, | as providing to this effect, that when tho | Attorney General refused, thea = claimants may mako themselves relators and use the name of | the State; but that that ghull be a mere private suit that shall be good between the parties and nut allect the public or the State, Tt is in terms ¢o provided, und it ts provided thut the judgment shall not be a bar to tho suit by the Attorney General in the public right, so much to explain that situation, Now, there is but one otner point to which I wish to call the attention of the commision, Ino the | legislation of Florida—tor 1 can spend no time hearse =the statutes on pago No, 63 this pampulot, which has been printed ho use of tho Commissioners, there were found | 1 and 32, one a provision’ that the Secretury | hall make andgtransinit to each person chosen to any State office immediately after the canvars showing that the canvass as completed 1s the basis of the State’s authentication of the right of every Stato ollicer *a certificate showing the number of the votes cuet for each pelson, Which certificate shall be prima Jacie evidence vf bis ciection to such oftice.”” That ‘gives bim the office, Subsequent inquiry is us to the Tight. Section 32 says:— any person shall be elected t Vico President or i that the office of elector Cons exentutive i and cause transmitted to Goal determination of the man Uhut has been appointed elector under the constitution of the United States. Have these contestants any such authentication of tue right, and have they proposed any such evidence of their tile on tue éth ot December’ Ana the quesuon of complete. | ness of the warrant of tue Hayes electors | to attend and discharge their duty vut robed | the vote when chet with the complete qualification under the State Jaw’ and State uction to pass the vote, We have the Governor's certilicate (us he w the very man that pussed for the Siate on that question, which turpishes the right to meet and act) that tuis is | the listot men that were appointed. These certili- | cates, under the State law, form no partof the return to the Presidentof the Senate, but when the same Governor executes, under federal law, the same duty under tho same evidence, we have the cortilicate withe Out tue production of the antecodent one, GENERAL FOWERS. Now wo some under a pretty brief period of dis- cussion to the general doctrine us Wo what the powers and what the arrangement and disposition of those powers are, under the constitution of the United States, in the transaction 01 choosing a President, In the first pluce the only transaction of choosing a Pres- ident begins with the deposit, 80 to speak, in the te eral office, of the votes of certain persons named and describeu'in the constitution a8 “olectors, rom | the moment of that deponit tue sealed vote hes pro- tected against distraction or curruption in the deposwory provided tor ity the ossession of the lederal officers In the federal ofilc | tor transmission here. | page 698; 53d New Hampshire Reports, page 640, and he next step alter thut 1s the opening of those votes and their coupting, and that succeeds the deposit of | the votes by the ewetors und roiaies to their 4 tho qualitications which the act of Congress pi | ‘Those qualineations are nothing but appuintinents by | tho States, and beyond that the act of Congress and the lederal courtitution, with due regard ty the Stace authority, dues pot itrude, It has provided, under a rule of prudence, that they shail bo uppoimted on the sume duy in all’ the States; it has provided that they mect and cast their votes on the same day; the latter | t# the method, term and preseribed date in the transac- tion of voung for President; the other is | the only imtrusion upon State authority tn the av- solute vhoice of ume and manner of uppointment that Congress may prescribo®the time, and Congress has preserived it Now, what are we to spect to the stage of this transaction which we have | now reached—the deposit of the teaeral vote for Prest- dent by the qualified Electors’ Lt is their own vote, | They are not delegates to make a vote according tothe | wstraction of their St They are not depuuzed to | perform the will ot anybody. They aro voters who | exercise the free choice and authority to vote or refrain from voting, (of course, neglecting 4 duty), und to vote for whom they please, and from | the moment that their vote ix ‘seuled and | sent forward toward the seat of government, no power in @ State can touch tt, arrest it, reserve it, corrupt it, retract it, Nothing is to be done except count it, and count it ag tt Was deposited, ‘Those ciec- tors—-at the present election 369 citizens In number— | fre by the constitution made for them quatitications | dependent upon tho action of the State. If the State |, does not act there are po qualified electors. If the | State does act in whatever is the “be all”? aud the “end al’ of the State's action up to the time that the vow 1s cast, that 18 tl all” and the “end all” of the | qualification of the, elector, He is then a quatitied | elector, dep siting his vote to accomplish a purpose, | aud that vote is to be counted when the votes are col. locteu, PRECAUTION OV THE PATHEKS. Now, our aneesters, whoin we revere, were not want- ing either 1p forecast or circumspection, In this pro- | vision every solicitude, every safeguard that # not | over-credulous view of humau nature exacted of could exact lor the supremacy of the constitution in this | supreme transuetion under it was provided. At tne | bottum of everything Wax a determination that this business should proceed (to Uli the office) ; terror of monarchies and repavlics alike, a Vacant « disputed supremacy (in tne sense of the occupation of | tho Chiet Sagistracy), should not possibly extst. Let me define tor you this Imitation in quo warranto to cover investigations into thirteen or into thirty- eight States, That the second, the substituted election | onthe tuilure of the first, must end by the 4th of | March, and whatever interpolates in any stage from tho deposit 10 the primary bullot boxes In tne State up to the termination o: the Ferutiny which declares a Prea- ident elceted or the talture to elect, upon whieh the States resume their control through their delegates in | tho Jower House of Congress upon the bases of Stato equality—that sobstituiion must come io an end by the 4th ot =March—and, whoever in. troduces judicial qno warranto anywhere in the transaction, introduces a process of retardation ot battling, of obscuring, of detrauding, of defeating | the election, and gives to the Senate the present tiie | Ing With an acting officer of the great ollice, aud com. peis a new owection, That much tor delay. Now it is | an absolately novel proposition that judicial power 0 put its httle linger iuto the political traasneuon ot | choosing any ; ging Into oflic y bringing into ollice a Governor; bringing Into office any | Ol the necessary agents of the State, Without which im the present action it will be eufeebled and may tall; itis @ | political acuion from beginning to end, Who does not undersiand that It jadges and courts are untrue at the stages that are to be passed to fill the office vo that there shal! be no vacancy and no disputed succession Twill ask Your Honors’ atvention, in connection with the topic that I last discussed and iu pertinent re- de facto, who dovs not seo that by placing it in tae bayds of Judges you introduce the ineuns ol defraud. ot Representatives, und a sin lection of similar individuals has ' been made in tho thug presenting the entire logisiative re; | tauon of our We country to the observation | resolve ing and defeating political action entirely, and turn- ing it into a discussion of the mere right that should office vacant until the mere right Was | determmed? Now, it is a bsolute novelty unknown in the States, unknown ip the nation, that Judicial inquii ical action that leads to Hlling a magistracy, The in. restot the State is that it shail be flied. Mang 1 ts the exercise of a political right, the discharge 0! polincal duty, with such saleguarus about the first canvass, the second, the third and the fourth canvyuss, the tinal counting betore tue two houses as are suil- abie to see that there is a progress under authority, the perversion of which is punishable by the State or by the nation as within the sphere of one or the other, und that sball not retard progress to the end. These are provided, th usetul; bat you do not stop with w judicial vestigation into a ballos- box upon a suggestion that it has been siufted and stop the election uuiil that quo warranto 1s Mutshed, and then, when you get to tho first canvusgor, stop’ this count from going on because it i a false couut, and have # Court decide, and so with the county canvassers, stop their transactions in the rapid progress to tho result aimed at—to wit, the filling of the office with a quo warranto there—and then in the State canvass, and then here, Itts an wbsolute novelty, Attempts buve been made, bat no judicial action has ever been accepted and tol- lowed, except of mandamus to compel oficers ow | nothing else, ‘That was pot retarding, that was d- celeruting, that was compelling, that was discarding delays on the question of right, In our Supreme Court 0: New York, not very many years ago, an attempt was made to obtain an ipjanc- {ion against inspectors canvuasing the evidence ut the primary deposit of the ballot box of their election district, because they had been sworn on the Directory and wot the Bible, Now, they had no rght to dis- charge their function without swearing on the Bible, | the preliminary oath, the first conditional observance to the duty. ‘The court discharged it, necessarily, However much that = may find place on a quo warranto reinvestigation of the whole transaction Diecemenl inquiries cannot be made, and no injunction of a court can intrude into # political act. Now let mo call your attention to a provision in the act of Con- gress the application of which may not have attracted observation, Lt 1s provided in the act that it the State shall have failed to appoint on the duy for appoint. | ment it may muke a subsequent appointment us thy | Legislature may please, It was not inveaded, then, that the process of finding out whether there had | been an election or not should by its method and its regular action be exposed to a frus- tration, or that the iailure itself disclosed by tho political cunvasa bo tho busis of the writ by which the Stato was to exercise its functions in time in thisact of Congress is a | sion Which shows that they recognize that the mothod of progress in tho result was to be cherisned others, that 1ts success might ead in t 0 jualication, of its failure tn time that the 1 apporutment reserved to the State should be accorded, Now itis said that failure of election is to be retarded in tts declaration to deprive a State of its power to act upon that failure, and it is said that by the a of Congress contemplated either ascertainment may involve judi- cil proceedings in the State. Why, if there be any- thing that in election laws is providedin every state, it is that there shall be no reconsideration, no stops back- ward, no delays except the ministerial and apparently ensy duty, und if discretion is given by departures from that general policy in purticular States, it is always found to Lave its origin 1n a mischief per se Lo correct it i designod, an abnor- mal condition of politic that requires a parture trom the general method of an absolute minis- terial transuction, Now, our proposition, as has been laid down so well by my learned associates, ts that, under the State law Fiori, that 1s the method, that ts the action, und that every act and stage of that action, rightly, wrongly, honestly, purely or fraudulently, bus con: ferred qualifications such us the federal constitution requires in the apporntment by the State through the methods that it bas provided. One word on the point that the lime of demarkation be- tween the Inception of the federal authority id culmination and consummation of the States tion precludes an inquiry at the turthest beyond tho tact certified ag of record, and the accuracy of the cer- {ticate ts to be found in the legislation proposed in the Congress of 1800, when the wisdom was stll of the fathers enlightened by the working of the great scheme thoy had tramed. It 1s there shown that the | demarkation should be observed and that the powors | shoula not tuciude or be doomed tu include any inquiry into the votes ag custin tho State. The novelty, us 1 | have said, of the situation produces strauge resuits. Never before has there been a returdation of the politicat transaction of counting au election, and to accomplish that, ulmost a miricle has been needed, for tho sun and moon have been made to d stil much longer than they were for Joshua in bis conflict in Judea, and you will find that the attempt to bring Judges—(L do not now speak of judges in the official | capacity that some portion of thid Bench occupy tn the | Supreme Court, but | mean judges in nature of function and exercise). to the working of this scheme ol pop- ular soveregaty in its political view will muke it as intolerable, will detraud und defeat it (by the nature of that intervention, not the character uf the partic; ular transaction of the judges) til the government of the judges will have superseded the sovereignty ot tho people, and there will bo no cure, no resort but that which tho children of Israel had to pray for—a king. AUTHORITIRS CITKD, Mr. Rvarts referred the commission, in closing, to the following cases :-—-Dickey vs Reaves, im the 78th Illinois Reports, pages 267, 268 and 269; a case (tule not given) in the 25th Maine Keports, page 566, con- taining an opinion of the Supreme Judieial Court of that States und to cases in the 38th Maine Reports. nw recent case, culled ‘he Cwsar-Griffin case, in the dis- trict of Virginia, published in Johnson’s Reports, page 4. SPRIBH OF MR, O'CONOR. Charles O'Conor, of New York, then addressed Comimirsion, He said; — Mr PRESIDENT AND GENTLEMEN OF THE COMMISSION— I will not say probably, because it may ba said most M th: vertainly. the most important case that bas ever been presented to any oficial authority within these United States, 1s now brought before this honorable commission for its in- Vestigation and decision, It 1s brought under circum- stances that give absolute assurance, so tar as absolave surance can exist in haman things, of a right and intelligent decision, which will rs approbation of all just and honorable men, occasion which bas given-rise to the construction of this tribunal has attracted the attention of every en- lightened wnd observing individual in the civilized world, This Commission acts unver that observation, ‘Yho conclusion at which it may arrive must necessarily pass into history, and, from the deeply interesting character (in all = its respects) of the proceedings had and of the judg- to be pronounced, that history will attract the jon of students and observers and men of intelli- gence, or of any literary culture, as long us our coun- try shall be remombored, tor it ‘shall not be supposed that ‘a question ever’ will arise to be deter- mined in a manner at all similar to this, which, by its superior magnitude, importance, detivacy aud interest will tend to obstract this or cause it to be overlooked. The selection of members tor this Commission 1s made by a choice of five individu. uls equal, useumeu to be equal, pronounced wo be equal, if pot superior, to any other tuaividuals in the Horse Of present and future times in what you are here to do, To them is added a selection irom the highest tribunal known under our constitution and laws, and certasnly a tribunal equal in majesty and power to any | Judictal tribunal that ever existed. This sciection was evidently, trom the whole form of proceedure, made witb an earnest intent, and it may begsaid, with a fixed to have hero represented Whatever of pertect impartislity and fairuess, whatever of purity Aud integrity our country can afford, and this is pab- Hie uct of the highest authority to oxpre the people of the United states of Amerion, ‘The ques- tions to be idered ure of a pablic vaturo and of a Judicial nature, Every womber appointed to this Commission hus boen a Jurist vy profession ull his lite, and hay devoted his time and bis studies to the appre: henson and the comprehension of this class of ques- tions, It was said by « great English judgo and | uw great writer and bistoran, in the highest court of appeals in that country, in an eminent case, that jurisprudence was the department of human knowl he United Stutes of @dge to which our brethre Ameries bad ebiell nselves, und the one thie whieh ty celled ux, With all these elements affor wes of the result I think it may conuently be asserted that the result cannot be other than such as the great voice of intelligent judgment m present and tu- ture times willapprove. With that assurance and with a deep sense of iny own Ineapacity to meet the argu ment of the great question presented to you, bue with the contidence that our defects will be supplied by the learning and the judgmert of the tritunal, £ proceed to lay beture your Honors what may be sad ‘on our part in respect io the 18sues that have been raived tor’ con- m sideration by the resvive adopted by the Commission on Saturday. THR QUESTION, The questions in short (without detail) ato:—What powers have been vested tn this Commission tor the purpose of enabling it to guide to 4 determination the wction of the political authorities of this country’ And here let me observe that what has repeating them in been sald 1h reference to the Court on our part on Saturday, as prescribing limits or giving our views of some litite to the power and authority of this Commission is founded ona wistuke. ‘That paper was ned for ho such purpose, 1 Xpressed no such but was prevented with « View of facilitating the action of tho court im the very narrow range of in- quiry into the matters of fact which would actually 0 me necessary. In reference to the question whut elements of Inquiry are within the reach of this com- mission, the counsel on opposite sides stand in direct conflict, and ‘THR ISSUE FORMED between us is this:—Wo maintain, as representing what are called the Tilden electors, that this urtvunal has full authority to tovestigate by all judioial and legal means the very fact, and thereby to ascertain what was the vote of Forida, On the other hand it was claiined that this learned Commission 1s restricted merely .o a determination of what may be the just m- Jerence from the documents returned to the President of the Senate trom the State of Florida, mainly re- posing themselves, however, on the proposition th ‘they are officers deo facto, without right, bat only th color of i. The advocates of the Hayes electors claim, that inasmuch as these individuals cast their vole When possessed of some documeut which gave to them the color of a ¢luim and of a right to thatoitice, and to the perlormanee of that duty, the fact that they acted on this color and did cast, of their own motion, of their own personal will, through their own might of selection, voles which are sent here as the votes of tho State of Florida, completely precludes wil inquiry, and that it 1s impossible for any earthly tribuval or any individual to investigate into or determine the invalidity of their claim. This 6 (thus, as I trast, not too harrowly stated) gives rise to the question, What ure distinetly and fully and briefly expressed in this ade mirable document (the Electoral bill) destined (tu the immortal my oo of oro coucerned ra 48 preparatioa) to pass into history with your act; they are ex; in lines 78 and 79 of the House bil: pa If any, df purpose by the twu houses, acting asparately or toxetuer. You have this, and this is the test—all the powers of those two houres which could posaibiy exist under the law, as fixed ip the consiitution and in pre-existing statutes—for the purpose of your determination; and this brings us to the question, What powers are pos- sessed by the two houses, sepurately or togethe deuling with the whole of ‘this question touch ection, as it arises on facts whi ay What , aud gives rise at once to the ceive whether, in relation to the act that has been calied counting, the powers under existing saws at the tine this bill was passed—which were needed for a proper decision of tho question—resided in the President of the Senate or in the two houses or in tho house acting separat YOWRK OF THM PRESIDENT OF THE SENATE. Now, thas no power of any description deserving the name of a power tu investigate and decide resided the President of the Senate, is most palpable on the very words of the Constitution. He is authorized to receive certain packets; he has no authority whatever by the constitution, save aud except only to preseut himself to the wo houses and before them to open these packets (the word 1s * certiticates,”” but it meave these packets), He has no right to open them at any previous time. Ho has no power of investigation whatever, He bas no means of taking testimony. He hus vo right to judge of anything, and 4s positively precluded not only by the constitution, bat by the physical laws of nature, irom knowing what nay be within any packet thus received by him il the moment when he opens that packet im pre: ence of the two houses, and the packets whieh ‘a thus authorized to open are to prosent the material of subsequent action, Nothing further 1s prescribed him, aud Lbumbly subunit that it ts most mani y. that he bas none but the merest clerical powers, nor avy ability to do anything ex. cept to open the puckets at that time, at that place and tu that presence, Me cannot eve Know what isin them unt! he opens the packets, aud the packets which he thus opens (it is said) being ‘thus opened, a preliminary is effected on which a count must take place, no person or tupctonary being specially pointed out ax having power to make that count. A good deal has been said which | consider not very spplicable por very tustructive in regard ta this word rant,” as if it Was the operative und principal word here, and as if it was used te dotermine the = fueult and to pomt out the powers of those who must count, { humvly pro. sent to Your Honors’ consideration that the court itself te 80 purely and simply an arithineticnl fact und result that in regurd to it there can be po possible difference of opinion anywhere or among any persona, 1 hold that there is # word in this constitutional pidge which ought uot to be overlooked. ihe Yice President 18 t0 receive these packets or certificates, They are to have no noie of ear mark of any description to indicate what they are, and he can only learn by external inquiry thu they ary offered by persons pretending to be vied: tors of President and Vice President. Then the stitution (preceeding to declare his duty) says that “he shail open all the certificates.’’ The word “all would Perform no function, would be entirely usoless if it were to bo confined to indicating ihe certiticates which were absolutely conclusive and which must bo counted, In that case the simple phrase, “ie shall open the certificates,”’ would suffice; but he has toopen ail the certiicates, and this provision of the constitution (not granting powers butdealing with facts) declares thut he shall open all the certilicates that come to him under color of beieg such certilicates, 8 the constitution relers to, and there ends his duty, But when we come to the prescription that there suall be a count we ure not told that there shall be a count of ull tho certificates or of the certificates or of any: thing in the cortificates, but that there shall bea count of the votes, This, I humbly submit, intro- duces an implication that somohow, or by somebouv from this ufues produced and puysically laid betore the houses, there will ao investigation which the nature of the case may seem to require in order to determine what ure the votes, There is a preliminary juquiry, and Whether you denominate it judicial or ministerial or executive it 1s to be an inquiry, and the power to institute or to carry on the inquiry ia neither granted in toring nor provided with any possible meant of exercise so tur as the President of the Senute is con. cerned, and iy left to au iimplication that if 19 tO be exercised ~=by those who may have occasion to act ollicially on the resuit, Now, who are they who are to act officially by the terms of tho constitation and in performance of duty on t30 count of these votes? The constitution 1 plain. ‘The votes—meaning, ot course, the legal votes—are to be counsed. The count is the merest of ido ministe- tial ceremonies in itself, but the ascertainment of what votes there presented, as claimants to the power of being recognized to the selection of President and Vico President, necessurily devolves upon that body or functionary which 1 obliged to act upon that which 18 produce as result by the count. Now, unquestionably the tirst aod primary duty of each uf the houses, if there 1s a plain count showing tho elec. tion of @ porson to the Presidency and of auother per- fun to the Vice Presidency, 1 to recognize that co- ordinate be! pep of the -overoment, tho executive, All the world may count, No mortal mun can doubt about the count, But the world i* not called upon te uct in relation to that count unul that count has bes Tecognized by somo body, aud oilcially reeoguized, and tt ts the duty of the House of Kepreseutatives at that point of time to determine whether an exigency bas arisen which readers it its daty to recognize that & person 18 President by torce of a majority of the legal votes, or whether there has been u fuilure to elect vy reason of a tie, and in that event, it occurs, the House of Representatives vound at once to act and elect a President itsell, sume observation applies to the Senute iu reterenco to the Vice Presidency, and ou that subject the Senate is culled apon in like manner to recognizo the fact of an election, to allow it, admit it and accept i asa fact, oF to deny it and to say that it 4 not so, und then itselt to proceed to elect u View Present. Tattach no portance to the word “count,” but | attach Importan from the very wature of the thing, from tue laws 1 wrought into the coustitation of human beings and of human events, to the fact that those who lave to act ollicially are the perzons who must do whatever may be needed for the purpose of euubling them to count and to act 1M the one direction or the otuer, as the cuso May requirg im conformiuly with that count founded upon their preliminary investigation so far ar any investigation may ve necessury. Now the result of ths construction is that this off. cer, Who lias no powers, is set aside and confined ia the exercise of any functions he may bave to the bar. Tow liuits prescribed to him by thg constitution, aud that the duty ofexercising any nigher function preim- inary to this mere formal, indiaputavle surt of act, the counting, (8 devolved upon thove who must take notice Of the count, But no man oF Bo body is wathorized to make or to deciare the couut, um tbe these two bodies respectively. Aud thus « power is introduced hot vy Mnpiication of any torced nature, but irom the absolute necessity of the, case, and consequently we claim that the power was vasted iu those houses, Now, tt 19 not to be disputed, nor shail we questibn it here, nor inake & special point about it, that Congress might, by united action, have countituled some body or place in sume tnaividual @ function by means of which this investigation might have beeu wade, und how fur Congress might have gone to make the action of this body obligatory we necd vot iaquire, It enough that if the two houses had the pow they did not exercise it prior to this occasion and have bot otherwiso exercised it than subsequently to this difiicuity vy the constitution of this tribunal, and to exercising it and vesting that power here the two houses have reserved to themselves the privilege o coming by @ coucurreut vote to a different determinw tion from what tay be here arrived at. Now i be noticed that each of these bodies has cot power of investigation, adequate power to take proois, \brough committees or otherwise, on any matter on which It may be obliged to pass either beture or alter the op gol the e:ecioral votes, They can investi- gate, though pot with the formalities of ajary, vor Under the preciso forms of @ judicial proceeding; but they cun investigate, as political or legislative ew may, all the facts aod circumstances that are necus- wary (o be known tn ordor to enlighten their judgment and to guide them to @ just and righteous decision. Our construction thus veste in these two houses by Decessary lo phcatioa op such a con: 1s here presented needtul for the accomplisninent of justice. ie Ho Objection to that construction? The whole argu: it resolves itvelf simply inte the common, ‘gument of the tnconvenient—the argue ad inconvententum, THK INCONVENIKNT ARGUMENT, Those who would seck to grasp and hold office by Moyal, trrogular, uolawtul, fraudulent means claim that it would be inconvenient to take so much trouble us might be necessary ia order to investigute and rightly deterinine on proofs the question of thelr det \njuency and thu falsity of their clam. ‘This i the ommum of all the persous who pa talsoly or traud yoy contrived title wien wn effort Is made to strip them of their prevended authority by demanding be- fore court or appropriate tribunal the fallacy of thoit chum, and the necessity to the end of justice of having that fallacy deciared aud their pretensions set aside. Jt ws the oply argument which gach parties are ever able to offer, and now tet us see Where siunda that argument tosted by the ordinary principles which wo may gath from the experience of mankind and from our generul knowledge. Lt is suggested that 1t might lead—and, 1 entered upon, must necessarily lead (if the parvies seq Ot to do tt)—to an investigation of the personal qualifica. tion of every one of the electors among 45,000,000 people, aud if you lay down the rule aad adopt t privciple that you bavea rightto investigate at all you open the door to that incouveniont aud boundless sea of Mitigation #0 gthat the mischiels must nec essariiy be 680 great that it is better for power (to unjustly: permit 1 usurper to enter by the most unboly of all avenues ((he avenue of palpable and indixputabdle fraud) to the high seat of the Prosidency of the United States; that It 1# better ta , OF ty ALY Oiuer more eBormous evil a8 One can be tmagined) than to sub ing and monstrous inconvenience which would result trom any attempt to inquire into the validity of tho election, Now let us see what there 18 1h that broad presentation of overwhelming inconve- hience, They say it is vot material; that but little need be inquired into here but that itis impossible to volh what another party may desire to offer (although we should limit our tuquiries very mceb, indeed,) and that in laying down the principle of action you may establish the doctrine that this spe investiga. Hen, 80 vexatious and imtoterable, may be warranted by law and may be allowed fn practice, und It is 80 said from u very proper analogy (so lar) because tn a writ of quo warrants in the inquiry iwto the ttle of an individual to an ofice you May investigate all the particulars down to the qualitication of every individual voter, aud, inasmuch as you nay Lave 1 the fact whether 4 particular vouer was dig ed by Feasou of being wn alien, you might there of ideptity (Vt be asserted body else took piace in the Tichborne cave, where, in determine tng # question of identity between two speertied sons a whole year was consumed, aod that \he powers of this Commission? Those powers are quently if that question were to arwe gn the great ie i i