The New York Herald Newspaper, February 16, 1877, Page 3

Le MME PRESIDENT MAKERS. The Closing Argument in the Louisiana Case. EVARTS ON PRESIDENTIAL ELECTORS. Neither Federal Nor State Of- ficers, but Electors. THE POWERS OF THE COMMISSION. ‘Judge Campbell on the Election Ma- chinery of the State. ——— HOW VOTERS WERE PROTECTED Was the Board Legally Constituted and Did It Act in a Legal Manner ? A DECISION EXPECTED TO-DAY, ‘FROM OUR SPECIAL CORRESPONDENT, Wasuinctox, Feb, 15, 1877. Before the Electoral Commission to-day Mr. Evarts @rgued for tho republicans “that the certification of electors by a State 1s final and uot reviewable by Con- Gress or any tribuual that Congress can create.” Ho held that the federal government can confer nothing ‘upon @ State, since it came into existence by the con- sent of the States; that it has the right to create clec- tors, and the eral government has no right to in- quire bebind the fact, and that the only power that could have been defegated by Congress to the com- mission is the power to count without scrutinizing the Slectoral votes, Reviewing for a full hour the muta- Hong of the Louisiana election laws of 1868, 1870 and 4973, he asserted that the act of 1868 provided both for a mode of choosing electors and a mode of can- vassing the votes for them; that the act of | 1870,. whilo repeating the canvassing section of the act of 1868 aif not repeal the other Sections, and that the act now in force of 1872 by providing a mode of canvassing, forms, together | ‘with the unrepealod sections of the act of 1868, a com. Plete election law legalizing the Roturning Board. Next he took the broad ground in regard to the certi- Acation of the Louisiana olectors, First—That Kellogg, whom the opposing counsel bad’ admitted to be Governor de facto in their printed offer of proof, had a right to make tne certification. Szcond—That the facts rendered to the Governor con- eerning the electfon warranted him in making it. Also that the certificates of the alleged ineligible electors, Brewster, Surveyor General, and Levisee, Port Commissioner, formed a proper and lawful pazt ef the recorded result, He held that the commission @ould not understand the real condition of Louisiana, and charging intimidation as an offset to the usurpa- tion and illegal action charged, he said:—*'The violence that ravishes or the fraud that secretly purlois the Virtue ond the rights of American citizens—which is ‘she worst?” ssi THK INRLIGIBILITY QUESTION, In regard to the inoligibity of Browstcr and Leviseo he said that the constitution was not guilty of the folly of prescriving that a State should not elect to tue Office of clector an honored citizen who fills within its | borders a place of public trust, Tho State has a right to decide for itxolf what electors it will choose; ‘to say that an ineligible man can’t bo elected isw say that the forbidden fruit coulda’t be eaten. In respect to these two electors, they have been elected, and the State is not to be tripped up ina transactivn satisfac tory to itself by any extrancy is evidease of tho fact.” JUDGK CAMPAELL'S ARGUMENT, Judge Campbell made a very close legal argument. He said that tho President, being a federal officer, tho Political head of the whole people, and their creation, they have @ right, through this tribunal, to inquire {nto big origin, ‘Where,’ he asked, ‘‘where else Will every man in the United States be represented in final decision?” The jurisdiction of the federal government over the the decision in this case is, he argued, apsolute. The Statereceived permis- sion to appoint Presidential electors from the federal constitution; na: it received a command to that effect, Kach State, by the terms of the constitution, “shall,” that isto say, is required to appoint Presiden- tial electors, He introduced hoe ya point which created an impression, the point that the count of electoral ‘votes has more than onco been proved to be by the sufferance of Congreas, since Congress did use its | Power to reject the electoral vots of sevon States for President on the ground that they were in rebellion. He remarked that the power in the Statos to appoint slectors was a trust power returned to the States, and “not a bauble to be played with, If,” he said, ‘the voice of a State, as uttered in the choosing electors, be an uncertain ‘voice, Congress can refuse to hear it, You must be assured that it is the State that speaks to you before | you count its votes. The State’s voico is not sure to be uttered by a corporation, a Returning Board.’’ He went on to show that unless Congress could remedy a fraud the people of Louisiana would be lett without remedy at all against upy, even the most atrocious and transparent, frands of a Return. ing Board, Judge Cémpbell is ono of the ablest lawyers of Louisiana, was formorly a judge of the Supreme Court of the United States, and is high!y | Fespected by the presont Supreme Court judges. His statement, therefore, that under the Louisiana law the People had no remedy at all against fraud by the Re- Wurning Board, that neither the Legislature nor the Bupreme Court could interfore to protect them, and that they must depend on Congross, attracted the attention of the commission and produced inquiries by | sevoral | Judge Strong asked was it in the power of the State of Louisiana, irst to compel the Returuing Board to canvases and return the votes on or befure the twentieth of November last; and sovond, couid the State” create @ new tribunal to try the caso Lelween two sets of con- testing electora, Jadg Compbell—I think not, sir. Judy Strong—Thea you take the ground that the Stave bas ao jurisdiction over its own electors? Judje CampbellI say tuat, in my judgment, whe State bas power simply to choose its clectors aud to send thoir certiiicats to Congress, wnero the question of ther validity is to be decided, : THE LAWS OF THY BTaTB, Jugge Campbell then procaedea to demonstrate by the lews of the State the following important facia:— W the Election uct of 1872 im Louisiana repealed | ee NEW YORK HERALD, FRIDAY, FEBRU. , all acts and parts of acts previous to it, and conse- quently wiped out the sections in the act of 1864 pro- viding for @ mode Of election, Therefore, as the sub- Sequent act of 1872 provided no method the Returning Board had uo duo warrant; that the Returning Board was required by its oaths to count tho original re- | turns made by the Commissioners of Election; but, instead of doing this, it accepted what a witness has called a “contabulated statement” by the Supervisor. THE VaCaxcY quxstion. ‘That the omission, more thau that the retusal of the Returning Board to fill the vacancy which occur- rod, and which, in despite of the provision of the law under which it acted, providing that all political par- ties should be represented on it, acted throughout with four members of one political party only, vitiates all its proceedings. This point ts thought by not a few lawyers on and Outside of the commission to be the most important point in the whole case on the side of Mr. Tildon, and it was emphasized to-day by the averment of Judge Campbell that repeated requests were made to the board to fill the vacancy, and that it constantly rofusea them. The law providos that in case of a vacancy by death or otherwise ‘then the vucancy shall be filled.” Judge Campbell offered to produce proof that the re- fasal of the Board to comply with this mandate was inspired by ‘‘the corrupt motive of escaping observa. tion of its acts,’” THE INTIMIDATION QUESTION. Aside trom the legal argument, the most interesting statoment presented by Judge Campbell was a descrip- tion of the state of affairs in Louisiana on the eve of the last election. He enumerated 7,000 officials, almost all republicans, and consisting of deputy marshals, special policemen and United States soldiers, who were deputed to watch the polls on elec- tion day throughout the State, This he ac- counted to be a sufficient protection of the polls, and he alleged, moreovor, that ueither the Com- mussionors of Election nor the Supervisors of Regis- tration made any complaint of violence or intimidation at the polls on the eveof the clection. However, 10,000 separate warrants of arrest w issued for 10,000 ditferent men, comprising in part the best por- tion of the community of New Orleans, The affdavits for these arrests were made by two men, policemen in each Ward; the Commissioner who made out these papers, he sald, brought in a bill for the preparation of those affidavits, But Judge Bil- ings said:—*'There 18 a groas traud on the Lace of these papers, and I won’t pay adollar.”” At the close of the argument Mr. Merrick asked leave to fle u brief including points directly against the power of the Hoturning Board to canvass the votes, containing a docision by Mr. Justice Miller, THE PROCKEDINGS TO-vaY. At the conclusion of the session at balf-past four, the commission took a recess for fifteen migutes, On re- assembling it discussed for twenty minutes the pre- liminaries of its private session to-morrow, but de- cided upon no order of procedure, It will assemble at ton to-morrow and sit in private until four, during which interval it will consider the question of admis- sion evidence exclusively. At four it will open the doors to connsel and announce its decision whether it will take testimony or not. If it decides to hear evidence, then counsel will be summoned im- mediately and the rest of the case will be presented or thrown over for discussion on the enauing day, ot PROCEEDINGS OF THE COMMISSION. Wasuixaroy, Feb. 15, 1877. The commission met at fifteen minutes past ten this morning, owing to the compromise vote last evening at the adjouroment, when neither ten nor half-past ten would be accepted, When Mr. Kvarts rose to speak the room seemed especially crowded, a grea) detnand fdr admittance being made, and the number of ladies being consider- abty increased. Mr, Evarts addreszed the commission as follows :— SPERCH OF MR. EVARTS, i Mx PRESIDENT AND GENTLEMEN OF THE CommissiON— Tne general subject of controversy before the com- mission 18 how this commission, under the powers con- ferred upon it and in the discharge of the duty con- fided to 1t by an act of Congress under which it is orgvuized, shall advise the two houses of Congress io the discharge of their duty, tcader the con- Btituion of the United States, im counting the votes for Prosiduut, and Vice President what votes shall be counted for the State of Louisiana. The constitution has undertaken to determine that the State, shall have the power to appoint electors as its Legislature may direct, and no authority or argu- ment cun disparage or overreach that right of the State, That right isin the State Itis not a gilt from the federal government, for there was no federal government to give it, It is not carved out of any tuna of power or right that the federal government possessed, for the federal government had no general fund of power or right out of which it coulu cover a gift to the State. The Stute of Loweiana stands in this behalf as une of the original thirjeen States stood. Whatever was the right of one‘ ot the original thirteen States in the election of Washington is the right of Louisiana now in the election of a President, and therefore it is not to be measured asa gilt; not to be measured in its relation to any general fund of authority on the subject that the United States had and which it has limited, bat as one of the condi- tions, one of the original limitations, one of the origi- nal distributions of power out of which and by which combined comes the government of the United states and exist the governments Of the States as members of the Union. This topic at once leads us to consider wherein the constitution of the United States has established and bow it bas distributed the authority of choosing a President of the United States; what purt of is is administered and administrable as tho action of the federal government; what part of it is administered aud adininistrable as the partof the State action in the matter, and on the terms of the constitution is this demarkation tu the drawn aud adhered to; aod in this Tegurd, as well as in overy vther respect oi power, are tue muxims of the constitution, as to construction concerning the line drawn, to be observed as weil as in every other, ‘The government coulers nothing upon the States, the government comes into existeace by and through the States aud their poople, and tuearru- gution of authority is primary in the State, und is in the general government only by 14s ullotment of the terms of the constiiution, and tuere is, therefore, the same method of construction aud inter. Pretation in drawing the line and in matutaiuing its defences in this matter of election ot sident as in all others, Whatever the federal government has in this matter of election of a President it hus by jorce of terms im the constitution. Whatever the Stute bas it bas upon the saine terms, and then the tenth amend. ment applies, and the ninth applies—that thero isto bo no disparagement of the rights that are arrogated by the rights that are conferred, aud that whatever is nut conterred upon the federal government by this cua- sultution anu is not forbidden to the States is reserved to the Siates or to the peopl PROPOSITIONS IN TUE FLORIDA Cask. Now, it 16 nos fe vo repout the arg: nis nade by my learned ase 8 80 Well, avd by me so lar ash could wid them in the general discussions which were’ presenied under the Fiorida case, These general prop- ositions Were thatthe whole matter ut creating the elector buionged to the State; tho whole matier of weriaiving, accrediting and setting forward with cre- dontials Lelouged tu (be State, so lar as the text of tbe constitution read, and that, whatever | juz had sought to prescribe int outils t was directory and jor the 1 struction of the body that was to count the vote; av the elector Was DOL 4b vllicer of the State; that 1 bo very considvravie seuse could be created an oliver of tht United States; that he was an elector, having the right under the constitution of the United States to votu jor President, and that be gas a representative elector was to be measured only to dis- whother he was deputized to actus an agent or whetuer lv was accredited with the voulng power to teas an elector, baving the suflrage in his hands, that he Was a representative elector becaus he comes to be an elector im reprereutation of aud participation 1m the government of « State, amounts to bing more than to say that you members ot the two houses of Congress are ntative legis- lator! You are representative logisiators, You are legislators in & govorument resting on the wii of the people and upon its commu. Licated authority to you As representatives; but you aro not deputized to derive your mstractions and wuthority Irom a principal at bome, You are repre- seutatives of the iegisiative authority lodged theoret- jeully in the people at in the theory of representa. | tion possessed by you in the same plenary power that | the peopio themselves would have exercised it. Jt was then announced as our proposition that after the appointment of electors then the vote and title to vote and the exercise of the right and performance of | the duty to ord - Go = of on enn si pe come | under the exclusive dominion of the tederal constitu. tion, the representation, so far as tt the croation of a title and the conferring of ity having been exhausted. Now, in the Flori: bere, these declarations had their weight and cepted or declined by the diferent membet commission according to their estimate of the con: | tution and laws of their country. Ip that case, us in | this, there were presented dotore this commission matters of consideration, about which, as thoy were ; open irely tor your inspection and necessarily form & part of your determination, there was no question. 1 mean the papers that were opened by the Prosident ot the Senate according to the constitution in the spe of the two houses of Congress, They are efore you under the law of 1877 as they were jore that Assembly, in that presence, under ‘the coustitu- "| Hon without the law o/ 1877, and now the question as to what more is or can be bet & question he law of 1877 as interpreted by its own verma im the light of the constitution of the United States, It has passed beyond POWKKS OF THE COMMISSION. We did not dispute it in the Florida case, but if wo aro to receive the intimation of Mr. Justico Bradley it bas passed Leyond dispute in your own deliberations as receiving the concurrence of all—that you have the powers that the two houses have in the act and transaction of counting the votes and no other powers; not that you have the powers that the two uses of Congress together or separately have usthe legislature of the country; not that you have anv of the powers that either of them separately has in Fespect to what is accredited to either of them sep- arately in the co tion oCatside of legislative ir. You have no particle of any authority that is lodged in the two houses of Congr: under any of the pera! grants of auhority to them legislature, or {to either of them sey except what is granted by the con within the very terms of this article—that the traus- action being completed im the States, they having tor- warded their votes hither under such representations as brings them into the presence of the two houses of Congress, that their contents may ve disclosed and acted upon; that whatever action thereupon proceeds by the two houses there met, or by the two houses separating in the discharge of, und in the continued exercise of the function of counting the votes, this is passed over to you that your ad vice may be given torthem, as it would pro- coed out of thoir original, their independent dehberations and construttion, if they had limited themselves to the conduct of the counting of the votes in the simple torms of tho constitution, and they then proceed to count, They count the vote, Having made @ law unto themselves, which they cannot transcend without its repoul, that (his instruction, as to what votes ought to be counted under the constitution of the United States, they will uct upon as determining what votes under the constitution ought to be counted un- Jess their united judgment shall contravene this great authority they buve given to you, We insisted, therefore, in tle Florida case, that ono great conaideration in determining what the powers of Congress wero in this were vrocedure was what the nature of the proceedeng was, what the constitutional objects und solicitudes in phen for the transacuon had mdicated as the will of the people when they adopted the con-titution of the United States, aud that was met by very learned and very authoritative state- ments trom eminent lawyers. Mr. Field, in behalf of the House of Representatives, proposed to you that you bad at least the powers of a court | on quo = warranto, Mr. O’Conor, with that accuracy and precision that proceed from his statements demanded the samo authority, insisiod that otherwise the correction of the frauds, the redress of violence, the curbing of the excess of authority would be remediless, and yet in their puture being tex- tering wounds im the body politico would work its ruin, Those demands wore mude, those demands wor swored, and now, without one particle of change in the law, the constitution or the ares of this debate, we are told by the responsible representa- tives of the houses of Congress, through their objectors and by the’ eminent counsel thut have put forward their positions, that you have no Judicial power whatever; thut we were quite right about thut; there could not be any judiclal power out- aide of a court inleror to the Supreme Court, the judges whereot were appotated by the President and confirmed bythe Sonate, aud held office for Ile upon a stated compensation. Why might we nor e been saved the tormul discussion? — If we are to enter upon ‘this with any great (rust iu its sound, nence, obedience to the rulings of this commission, ax requiring this shitting of ground in our face, would be &@ respectable support for tne manwuvre; but | have not heard that giver asa reason, The argument in the Florida case was abandoned, and un independent and inconsistent one proposeu here. WHAT 18 THE POWER? Now what isthe power? It is what is called a legis- lative po' thut is suppesed to reside in this commis- sion in determining bow it should advise that the Votes should be counted, it being a legislative power in the two houses, Now there are quite us many con- stitutional ovjestions toa legislative power vested in tbis commission, or the legislatiy: wer resting in the two houses of Congress iu the matter of counting the votes us there are to any otber form or descrip- tion of power. The legislative power of Congress, the great and principal power of government, is vested in those houses when they act in such concurrence as the constitution requires, but before any legislation can proceed from them thei must be such submission of it to the approval of the President as the constatution requires before apy legislation 1s elected. It is not, thereiore, in that senso that our learned friends attribute a legis lative power, either to the two houses of Congress or to you. It 1h tm the sense of u political power, of polit. iwal action, in a political tramaction, ‘fboro are the limits which we bad assigued to our argument in the Florida case as to tho powers of the two houses—-to wit, that in the transuction of an election which sturts from the primary polling places and proceeus to the point of deveiwping and accrediting an elector up to the scrunuy, so fur as itis opeuel here, and the counting of the electoral votes, not of votes for electors, 1t was all @ part in the series of bat hud for their purpose shat transaction olitical act of bringing into oillice President of the United State-, and that the two houses of Congress, constitution as‘it reads, must discharge— when the President of the Senate opened the certif- cates—that duty on those certilicates, unless by some prior legislative action of the Congress putting in exe- cution, aud thus interpreting some powers that they undertook; fur in their construction of the constitu. Vion it provided by legal meuus lor the exercise of it, and the terms of this uct caretully obser ved tbat lim: ftution, that this uct was not to be interpreted as carry- ing any Congressional powers that were determined and created by the act, or any interpretation to be put Upon it in its own tering, but that it was to carry such powers as were in the two nouses as existing by pro- vious law and determinable by you. Theretore under the constitutiou aud under existing law, os | primary consideration, then, «8 in the Fiore | case, it is to be determincd—not as the abstract question that we ask Your Honors to consiwer-— 1% 1s to be determined pot what hypo- thetical proof might be received, but what vrovis within the office aro rightfully w be received and added to the elements und funds of proof which the wr opened by the President of the Senate them. | ves disclose, THE OFFKR OF PROOF, What, then, isthe offer of proof—not in its details, but in its principles? Aud what is the state of proof as presented in the certificates in aid or supplement or contrad:ciion of which this proof alt undi ix to be introduced? The first certificate coutains in itself every certainty and every conclusive credential that the laws or the constitution of the United States or of the State of Louisiana prescribed. This certificate also disclosos a special stute of tacts con- cerning two of the electors who cast their votes. 1 menn Mr. Brewster aud Mr, Levissee, The special | stale Of facts Was (hat, being among the electors that were voted for and that were covered by tho Gov- ernor’s certificate, when tho Electoral Collego met they were not in attendance; that the Stato prescribed thal their attendance should be wuitod for until tour o’clock in the alternoon of the day; und that, in case of nonattendance, by itself and yf itself alone, on the part of any person chosen or acoredited by the action vf tho State authuryes the vacany thus croated should be filled by the gett electors; that at (uat moment, on that tact, the col- lege of electors proceeded to chouse the sume men Who thereaiter on that title took their seats in tae Electoral College and voted, Are they to be counted or dis- carded upon that showing, to wit: the enure showing Of this certilicate opeued vy the Presidgnt of tne Senate, Now, beyond that thore isin this argument about evidence nut any particular circumstance that [ need to call wtlention to in regard to that first certificate, nor do need, that I can see—certainly not iu addition to the obser- vations that bave aiready been made—to discuss at all the second, or McEnery certiflente, Whut proot, thon, is ofored? I new proceed to a8 it, ae a matter of principle, as to 1s uppucation and where tts effect, if | at ail, la (0 be accepted. In the rst place the offore of proof do'not seek, any of thom, tu disparage the the truth uf that certificate nein 18 truth as made up ot the elements of the vernor’s certiicaioa of the fact in we State’s achon tat he is to certly—nor to im. peach the transactiva which is shown to Have taken place 1a the Electoral College. No prof offered touches that spuce in the transaction or the question Of the Goveruur’s right to cer right by being Governor to vertily, vr that the 2 the culminat+ the election im the State aud recorded result of | comports wiih the facts that he did vot su certify, » on the pot Brewster and Levisew came into t Electoral College on tie transaction preserved in ihe minutes of the Electoral Codege aud presenied li If we jook at the oflers of proot we so that at once so uF fiom introducing, — there- | fore, auy clement of proot. that iw to separate the Governor's certiticate trom the things cortilied, or is to disparage the Governor's right to cortity Wuder the constitution of the United States, Uhese ofters of proot expressly concede that condition of things and piant themselves whoily upon something | anteceuent in the Stites transaction to ute action ot | the Governor aud this action in the Staw whic pro: | duces the recorded result on which the Governor must certity, Im the tirst place we were saved any question and TF think ight have been saved any argument about Governor Kellogg's beg @ de facio Governor, tiling the office and pertorming ite duties, tor cat offered under (heir first bead to prove that said Kellogg was Governor de tucto of said State during all the months ot November and December, 1876, und thea, when | you come to their ollers coucerning the disqualification of Levisee and of Brewster, lound on the se one | Page, you will observe that there is not the Jeast p | Osition that ov the 6th duy of Decemoer, when these two inen caine into the oilice of elector vy the choice of the Klecioral College tollowing the vacaucy, they | were under any disquaitiication whatever, the proposition is--l read now trom what is called here the itith proposition—that on the 7th day of November A, D. Levisee, one of the pretended Collego Of Klwctors of the State of Louisiana, was at the tine of such election a Court Commissioner of the Uireuit Court of the United States for the District of Louisiana, oud for Brewster iu tue same way, The offer of proof ARY 16, 1877.-TRIPLE SHEET. thep falls ly short of disparaging his capacity to reveive an election ou the 6th day of December, aud the proot is not offered to contradict the transaction by which he came in through the vute of the Electoral College, as dispiuyed in the certificate. Now, in regard to the substantive matters of proof #0 far trom being obliged to rest ou the proposition that there is no ofter to inter that proof between the recorded result of the elect aud the Governor's certificate of that result as producing these electors and no others, the offers of proof are their proposition that that state of acts does exist, aud is part of the things they are able and ready to prove, Ll ask atieation Lo this principal offer of proof, which is az follows :— It bas been deliberately produced and made of record ip that State that by the autbority iutrusted with the final act of evidence and certilication these electors did receive a majority of the legal votes in the State of Louisiana, They say it was doue nulla fide and fraud. ulently, but it was they done. The act was consum- muted, and you are relieved, therolore, trom turvance of this definite and limited’ propos {t 18 competent fo rate thi 8 to the real facts of the election as deducible through successive steps from the depositing of the votes in the ballot boxes, and, second, whether conformed to legal authority, f entered upon an extended, ex- aust lucidation of the laws of Luuisi- gua, arguiug from them that the power to canvass the vote lay in the Returning Board, who had inthe cent election exercised only such powers us were con- ferred upon them by the statutes of Louisiaua, In regard to the exerciso of those powers in respect to the Presidential electors the government of the United States had no more authority than it had in regard to apy other election in that State, In question of ineligibility, Mr. Evarts position as im the Florida case, that legislation wus hecessary to enforce the coustitutional prohibition, and that without this the duty tor which the elector was created having by ated there was no power in the two hou: LMGAL SUNTLETY. He denied that au elector was either a federal or State offiver, aud in response to a question of Commis sioner Thurman, said:— Ho is certainly nov w St elector or voter having qual the sume kind as the office of th cn) Mr. Evarts defended himself and those associated with bim from the charge of endeavoring to vover up frauds whieh bad been perpetrated vy the Returoing Board, and in eloquent terms referred to the violencu and intimidation which be claimed had prevaiied in tho State, and closed his argument by a review of the offer of evidence by the democrats, which he argued the commission should not hear, At the conciusion of Mr. Bvarts’ speeeh the commis- sion took a recess for half an hour, and when it reas- sembled, ut a quarter to two o'clock PB, M., the Presi- dent (Judge Ciitord) announced the reception of the Nonave resolution tendering the use of the Senate hamber to the comimission in case they should hola un evening session, but no action Was taken theréon, Me also anuouveed that the remuining counsel had two houra und thirty minutes time leit tor argu. ment. MOF JUUR CAMPUKLL. Judge Campbell (a former Justice of the Supreme Court of the United S ) then addressed the com- mission on behuit of the democratic objectors. le spoke substantilly as follows:—We ditter so funda. awentally upon the principle of the generative process by which the eiectors of President and Vice Presi- deut cver came into the constitution thas f shall alter the arrangement of wy argumeat and fol'ow toe ar- rangement pursued by the learned counsel who lasi addressed the Court, I do not understand that the election of President had its origin in any State constitution, or that it derived its existence from any ‘reserve fund of power belonging to the States, but L vontend twat frow first to lust 10 18 & power derived from the people of the United States and does notowg its birth to any State constitution, The constitution cume iuto being by the Tatilicavion und acceptance ot 1t by the States, aud if the States hug rejected it there would have been still a United States, ‘The United States came into exis with the declaration of independence, In an opinion given by Chiet Justice Chase, and which ! regard as oue of ihe most interesting opinions that ever came from the court, it is stated that during the Revolution. ary period the goverument exercised all the powers of & sovereign governiacnt without much inquiry as to where its source of unthority came from, and during the period of the Coniederation they were still the Uited States under contederate articles. In other Words “the historical Union was stronger than the Union formed by the federal compuet.”” { say when they sent delegates to Philadelphia and organized and formed the articles which compose the feder tution It Wasa proposition to the States tu accept those articles and so Jor a Union, The people of the United States ‘on the face of this constitution” spoke with Sovereign power when they cafe to the subject of the President. ‘They said that the executive powe should be vested m the President of the United States of America, and when those words were accepted as law he was the President. When they camo to speak of the man- ner of his appointment they said: fach State shall appoint,’’ is required and commanded to appoint, “in such a manner as the Legiaiature thereof shall direct,” electors for that purpose, The language of the constitution ts imperative; it is an absolute “shall appoint,’”’ Now what ure the powers which the two houses of Congress have cxercised in Toiation to thissubject? Do tue States come before you th the shape of sovereigns avd claim of you “by any title superior w the constitution’ that their vores shall be counted? Do they come here and tell your Premident of the Senate, ‘Count these votes ut the peril of our displeasure?’” That has not been their tone or temper when approaching this subject. ‘To illus- trate Uuis, let me call your uttention to the fact that both of Bay Nouses of Congress said to four of the original States aiter the recent civil war, >We will count bo votes that may come from you;" and this wus done in advance of the reception of any votes, and simply in vindication of their own uuchority. There were some chimerical governments existing in some of those States, and they did pretend tu send electoral lists to the two houses, but they wore discarded as being too trivial for any con- sideration, Suppose the Legislature of Virginia nad sent her election lists in 1865 to vote for incumbents to the office at that time, and hod vemunded her right under the constitution to cast such voles, what would have been the answer? It would have been as baughty and proud as the demand. They would have been told, no longer entitled to the beneilts of this coustitution, because you ba: tempted to abrogate it, and we will not count your vote or allow you even to come to the barof our houses to present it; and these two houses, speaking in that voice of authority for the whole people of the United States, which fa vested in them for that pur- | pose, it seems Is now the poor, feeble, paltry, imbecile thing that cannot deal with the certificate of a traudu- jent returning board, um told again that ho examination can be sade into the authority of the State Legislature; that they bave no separate authority to direct on that subject, and that is their reserved right, and we cannot touch it or impuir i. They claim it as a gross usurpation if you venture to in- quiro into the acts of @ Legislature. [tis true that the State has the power touppoint and the Legislature to determine the manner and means of that appomtment, but not that a trust power? Is that’ power given = for = the ~—benelit or gratification uf a Staie merely? 1 suy no, This commission has the power to lok into every act ot the Legislature, and if that Legislature contravenes the fundamental principles that lie at the foundation of American liverty tuey should reject the votes. AN IMAGINARY Act, While th od gentloman was speaking { drew up an ‘maginagy act of the legislature of Louisiana as un illustration of his argument; aud, to enable me to put the case fuirly before you, suppose, for instance, the State of Louisiana bad passed such wn act as this:— Be iteuseted that William Pitt Kellog: Madison and thuir associates are made a bod of & corporation, under t . and there Js granted to them the sole exclusive power, priviiexe aud immunity to appoint in all the forms and at the times that may be dusicuated in the wet aud statutes of the United States, electors for President aud Vico resident of the Uuited Staten ub each Presidectinl election under the constitution of the United stutes, which tay be aud ulletted to the Stute of Louisiana, oF State of Louisiana m entitled to appomt, re contracts tom, nd in furtherance ther What would be said to such au Youit is not very far from the case belore the Court, 1 clectoral votes were presented by that,corporation, with the seals and signatures requirud, is there a mem. ber of either House of Cougress bot a siockhoider in the corporation who woud lor 4 tuoment husiiate to Feject it with contumelious scora! and wwe uuswer would ve clear and unequivocal, and the judyment would be a just judgment, it is — these Unied States now, thirty-oight’ in number, wio aro vercsted = in the exercise ot" this power, tor it ts the election of their Ciel Magisiraie, who is charged with performing the most important Acts that & nation cap authorize, This Presidential ap- pomtmens Cannot go into the market as stock to be bought aod sod, Although there muy be millions ia a Presidential election it must speak the voice of the State in its best feelings and intelligence, aad if you soe that certainly this cannot possibly be repre- sented im the direction of the Legisinture you will discard the directions, Now, thei aving shown that the legislative directions must be conturmable to the spirit of the constitution, it iolluws inevitably that the two houses of Congress must look into the nature aud character of those directions. It is not an ubso- jute or arbitrary power that is conferred upon tho Legisiature, They do not possess 18 1 full sovereignty as tho argument Would seem to imply. They are re- sponsible to tbe people of the Unitou States as uch ag tho Legislature is responsible to the people of the State. in this viow, 1m iny judgement, a pertectly jua- tifublo aud proper exorcive of power was mide in the case of Louwisiann when ber vote was od in 1865 by the two houses. There wasa qua inthe State between two returning bourds, and, after juvestigation of the facts in the case toe Seuate announced tue opinion m very clear language, and, a# 1 conceive it, was pertectly legitimate in its Conclusions, and determined they would not receive a Teturn computed and collected in the manner in which that was done, even though the office bat been accepted by the electors and the votes had been regularly returned, ‘That caso is parallel with the one befure the court. The Returning Board was required the act creating it and by the oaths of office of its members, to cauvass and compile the origtual returns, ‘That canvass was never made, and that compilation never took place; but another paper, calied by one wit I believe, a "contubue Jated” statement, was reed upon, and upon it they bused their action. ‘The learned counsel who argacd last is abie to tell What sort of @ creaturo an ciector is. [Lam not sure trom waoat he stated that in his conception an elector is oven a human being. Ho neca nos be, he says, @ citizen of the United States, or of a state, Ho is not an officer of the United States of # State, But 1 say that, after obta fog his appointment, he w not «a creatui of any State vower. or sublact ta any State direction, | co | an officer | because the State getting power to appoint from constitution, the Legisiature wetting power to direct from the constitution, those directions become a part Of this constitution, the power to direct being derived and Seine. examitable by the superior authority, if conformable to the constitution the directions are the -— as if tuey Nad been written in the cot jeu by the process directed by the coustituuon of the United States, and when he comes to perform bis duty by casting his vote aad sonding lists of the sano to the Congress of the United States, then at 4 certain date Congress meets ava the votes are opened, and they are counted; the voices of the people aro determined, and these voices have no uucertain wound. If they are not the full, clear aad sonorous voices Of Lbe State coming to this assembly of the ‘States on the one hand, aud tho assembiy of the people on the other, they will not ve recognized. They will nob wccept any ono as representing a State clothed in & garment not suit abie. But all the provisions of the constitution im tuis respect must be comphed with. ‘This being so, if it 8 doubttul, if 16 be uncertuin, thea the power, duty and obligation rests upon us to ques tion it, Would the peopie of the United states agree that the persons chuseu for electors should subunit their claims as such electors to be determined by the Unrty-eight different Supreme Courts or Circuit Courts of the United States? Would the judgment of any State court ve accepted as such @ judg. Ment ought to be accepred—that is, in the fulness of a cordial reception? Would they consent that the gentiemen of this commission, or the two houses of Congress should look to the transcript of & record certived from a court, say in Florida or Colorado, to determine the reault of an election? It is fectly evident (hat no suck acceptance could pos- sibly be given. Seventy-live or eighty years ago, 1b infancy of the Republic, when the ‘history jof every State and the ‘name of every prominent man was known to the whole country, the character of its tribunals were ali ascertamed, aud there was entire confidence in them amovg all parties, aod ‘at (bat tine possibly a State tribunal might bw had some degree of authority, But here, where the whole breadth of the continent separates ope Stute trom apother, and it is therefore difficult to be acquainted with abe proceedings of each, it is imposnivie for a State to exercise such a power, Where, then, is it pro- pur that such a power should be placed? I know the jormous difficulty on this puint because of the pare Usansbip and diversity of interest and jeulousy exist ing in different parts of the country. “But if the as- sembly of the States and the representatives of the people de uutit und incapable, where else are you to Jook for fitness and capacity coupled with power? Judge Campbell drew a yraphis picture of the elee- tou machinery of Louisiana, showing that under its workings the violence and intimidation of voters charged was impossible, and reviewed tue statutes of the state to show bow lilcgally and fraudulently the Ateturaing Board bad acted, ‘At the conclusion cf Judge Campbell’s speech, Mr, Merrick, of domoraciic counsel, asked leave to file a brief on'the sudject last referred to, and permission was granted, ‘The President (Justice Chflord) then announced that the diacussion on the pending offer Was concluded and Uhat there would be vo turther public proceedings to- day; and then, et hali-past tour o'ctock, the commis. sou, alter a short recess, went into sccret session, THE STRIKING ENGINEERS. NEW MEN RUNNING TRAINS ON THE BOBTON AND MAINE ROAD—BOTH PARTIES CONFI+ DENT OF ULTIMATE SUCCESS, (BY TELEGRAPH TO THE HERALD. ] Boston, Fev, 15, 1377. The striking engineers and the authorities of the Boston and Maine Railroad are as deliant and un- yielding as ever, To speak impartially of tho situa- tion, 1t must be stated that at this tine the railroad company scvrms to havo decidedly the best of it; bub the strikers matutain that they will yet win, and that every man will be back again in bis old place inthe course of w few days, What few passenger trains the company have sent outto-day have been moved more promptly and regularly than at any time Since the strike commenced, and an attempt bas ulso been made to rehove the treight blockade, But this will be necessarily slow, even witha full complement of help. Several of the directors of the road met to-day and discussed tbe situation in an informal manner, There was but one opinion expressed tu reference to the luture course of the management, and that was to use every exertion in running the road for the accom. modation of the travelling publicand independent of the Brotherhood of Locomotive Engineers, AGAINST THKLE BETTER JUVGMENT. Presiaent White speaks kindly of his engineers, and believes that many of them were induced to join in the | strike against their better Judgmant, their oath of ulle- | wgiance to the Brotherhood preventing tuom from diso- beying the orders emanating from the Grand Chief, He thought that they were, us arule, the dnest set of eugineers in the employ of any road centring in Bos son, and attributed the strike to the tufluence of Mr, Arthur, the Grand Cliet of the Order, Director Nichols ulso spoke kindly of the men, and Stated that they bad ulways, 10 the best of his knowl edge, been well treated, und were held in high estima- tow by the managers of the roud. But penther be nor his associates would allow ol apy dictation trom their employ és, and more thay all rom any one wot inthe employ of the road. The men tad wright pi s+ themevives trom injustice, but to his kuowtedge they hud been tairly wud bonoravly treated. The other directors present cxpressed similar views, and were Unanimous and tirm in the position they bave taken. Several stockhoiders who were interviewed this afternoon aleo declur:d themselves in taver of the policy which the officials of the road have pursued, THK STRIKERN UNDAUNTRD, The eoginosrs ure as coulident us ever that they will carry the day, and to accomplish tuis end they assert that they wiil’continue as quiet and peacetul us whey have becn since tne dilferences commenced. Their only moveweuts wave been w the direction of buying oif men Whom the company bave put in their places, Hult a dozen have been secured uway to-day, and the Brotherhood hope to get enough moro to-morrow to 1n- tertere very seriously with the operating of the road, Chief Arthur bus received offers of assistance irom engineers ali over the couatry, and lotters of sympathy trom citizens slong the ine of the road have pourod tm upon bim by the score, EXCITKMENT SUBSIDING, The public exciement bas somewhat subsided, but still there are an abundance vf complaints on the part of those Whose busivess lag guffered on account of the strike, aud there will Undoubtedly be vumerous suis for datnages, Altboagh everyting is comparatively | quiet now and the railroad officiais apparently seem | sausted with the situation, tt ig idie to suppose tbut they can operato the road with the lew inex- perienced men Who may remain loyal tothem. The other Boston roads ure not proffering the assistance that was anticipated, fur if they suoulu ike would provably ensue on their own premises. 18 generally conceded that this conflict will decido the lite or dewtn , wud hence the result is watched THE POTTERY STRIKE, Trentow, N. J.. Feb, 15, 1877, There is no immediate prospect of an end to the diMcuity between the boss potters of this eity and their employés, To-day the former published a notice that all not at work on Saturday, the Lith, would be | considered us discharged, und they were requested to remove their tools from the several works. This was signed by the American Crockery Company, Kast ‘Trenton bowery Company, Joseph H. Moore, Wiliam Young & Sous, Mercor l’otwery Company, Caxon & Co., KR. Millington, Oe & Brewer, City Pouery Company, Ashbury & Muddoc, Glasgow Pottery Company, Green- | woud Pottery Company and Isuac Davis. ‘Yhe operatives continue to hold out, augry demonstrations this week. ‘Thore were no PLASTERERS TO STRIKE. The Brooklyn Society of Plasterers bave adopted a resolution pledging themselves to strike for $2 40 a day un the eecoud Monday of March next THE GREAT BANK ROBBERY. | MORE ARRESTS TO FOLLOW—THE LEADERS IN CUSTODY—‘tRACKED BY. THEIL EFFORTS TO NEGOTIATE THE BONDS. Puraogneuta, Feb, 18, 1877. No outsider has, under any circumstances, been permitted to converse with Scott aud Dunlap, the two professional burglars who were arrested in this city for complicity in the great Northampton bank rovbery, and who bow occupy a cell in ‘*Moyamensiog,’’ as the county prison of Philadelphia is called. Oiteer Frank. lin, who mado the arrest, received this after: | noon the requisition of Governor Ric or Massachusetts, for the prisoners, Accompanying the requisition are eight different complaints, based oa as muny affidavits trom the president of the bank and | others from whom the money and bonds were stolen, The prisoaers, if they are tried on all these charges, wiil be sure tobe sentenced to about forty years’ im: risou, it, in the opinion of Officer Franklin. Tho latter left ior Harrisburg at tive o'clock this evening, with the warraut ot Governor Rice, to obtain the neces sary papers trom Governor Hartranft jor the return of the prisoucrs to Massachusetts, It is beheved that the three men now under arrest are undoubtedly the leaders of the band that robbed the bank; moreover, that they are the men who con- trol the money and seeuriti | curod these men the officer | may be expected svon, and perha) of the solen bounds, 880 for five months been watched being traced through their efforts capture have in New York, to negotiate she stoien securition, some of which are not sulabie in open market, There is no doubt they men represent their confederates and control the stolei bonds, nono of which hi ever been returned. ‘Thi stay in New York was to it for the retarn of the bonds, torongh a firm of appear to lave failed, id on Tu y cout lett New York with through Whea capiured hero a kit of highs hurwlare’ tools was found With their baemaea, | said 3 CABINET MAKING AS A FINE ART. Gossip ABOUT THE HAYES AND TILDEN PRO- GRAMMES—SOUTHEBN WHIGS IN THE HATED CABINET--OONKLING OB EVARTS FOR SEO RETARY OF STATE. Paitapecriia, Fob. 14, 1877. This ts a time when the noble guild of Cabinet ‘sts tu its glory. Tne ship carpenters of the Electoral Commission have not yet decided upon the figurehead for the ship of State, but the Cabinet makers are already flinging their whole soals into ar- rapgements, guesses, probabilities, speculations and rumors, Of course the two gentlemen, to one of whom it will fall in a few days to actually makes Cabinet as yet maimiain an inserutable silence. Is would be highly improper iu Mr. Hayes or Mr, Tilden to let even a whisper, of the least authentic hint, get abroad of what either would do or whom he would call to bis tuner couneil if be should become President. But the professioual Cabinet makers all over the coun- try are as busy and as bappy as the enemy of mau- kind is said to be in a gale of wind; and their plana, speculations and guesses, for which only they and not their prineipals are responsible, are cf a kina which at least afford glimpses of what many of the supporters of euch candidate think he ought to do, or is likely to do, orwhat the political exigencies of the country and party may compel him to do, The Hxa.p, which is the organ not ofa party, but of tho people and of the independent voters, and which cares for Presidents and Cabinets only as they may affect the welfare of the country, has taken the trouble to look into these various Cabinet speculations, and reports below what a political General Myer would call the **probabilities”’ on each side; and, as the re publicans have eecured Florida, we begin with the reports of the republican Cabinet makers. Here is 5 grand combination programme which unites the guesses and wisnes of a number of Cabinet makers:— Secretary of State....++... | Roscoe Conkling. William M. Evarts, Secretary of the Treasury....Jonn M, Forbes, Edward Atkinson. Professor Francis Walker, Senator Sherman, Eugene Hale, A Southern whig, A Southern whig, Senator Edmunds, Alphonso Taft. Judge Matthews, The republican Cabinet makers have for some time accepted Mr, Evi as the probable choice of Mr, Hayes for Secretary of State; but to the more astute of them {t has occurred that New York's great Senator, Mr, Conkling, could hardly be ignored; and of late we ‘Lear it suggested that Mr, Evarts may be asked to take the English mission (to the disgust of Mr. Stoughton), in order to make way for Senator Conkling, There aro others, however, who Insist that while Mr. Evarts will oto England New York will have no piace in a re- publican Cabinet, and that the Secretary of State will boa Western man—Mr, Ben Harrison, of indiana, re- publican candidate for Governor, being hinted at by those who think this would be a concession to Senutor Morton's “claims. It is asserted among the Cabinet making fraternity that Governor Hayes has been making inquiries about several New England men, and that be means to select his Secretary of the Treasury from that section of the country. The names mentioned in the list above are those which are circulated among the quiduuncs, They are allfor hard money and able men, Senator Sherman’s is the only name we hear mentioned for the War Department; and that rising young statesma: Mr. Eugene H: who has heon the spokesman of the Navy Department for some years in the House of Rep- resentatives, is supposed to be pocualturly eligible for a Cabinet place, because with him Mr, Hayes could pay off two debts at once, Mr. Hale being Mr. Blaine’s next friend and Secretary Chandler’s son-in- It will be remembered that Presiaent Grant wisbed some years ago to make Mr, Hale Postmaster General, but he de- clined the place. The general opinion of the Cabinet makers, we are told, leans to Judge Matthews as the most provable Attorney General It is said that a President must consult more constantly with this officer than with any other of the Cabinet, and that he ought therefore to be his tamihartriend. It is urged also that the present Attorncy General would, if he were retained, have to swallow more bad law of his own mixing than might be agreeable to him. As to Senator Kdmunds, his great ability as a lawyer mainly cuuses bis name to be mentioned Two places in the Hayes Cabinet are, by general con» sent of theyaldnunes, reserved for Southern men, and Judge Settic, of North Carolina, is named for one of these, but only by those whose republicaniem is of @ different and more extreme kind from that which Mr, Hayes is supposed to favor. It is taken for granted that if Mr. Ha: becomes President one of his most cherished objects will be to form a real whig- can party in the Southern States, and to do tha sald, he will select for bis Cabinet two Southern mea who have not hitherto acted with the republican party; that he will choose them from States liko Louisiana, South Carolina or Virginia, which have strong whig leanings, and that they will be influential whigs. The list thus mado 1s conspicuous for the absence of several prominent names, and bere are the explana, tions we havo heard about these, Uf Mr, Bristow it 1¢ that he represents only a hugo quarrel, which no wise President would import into his administration, Of Mr. Schurz it is suid that he does not seem to be wanted by anybody, and may be said therefore to represent nothing. Mr. Fenton, it is sald, will be content with the Austrian Mission, Mr, Halstead, of Cincinnati, the iuventor of the Southern war claims, is said to bo booked for Paris, Mr. Kas- son would not object to Spain, and may be sent to Switzerland, Mr. Galusha Grow would like a Cabinet place, but may goto Belgium, And here the confl- dences with the republican Cabinot makers come to an end. Next come the gentlemen who are making Mr. Til- den’s Cabinet tor him, Their guesses, consolidated alter the manner of the morning returns of an ine fantry company, look thus:— Secretary of Stale.. Charles Francis Adama, Senator Bayard. Sceretary of War.. Secretary of the Navy. Secretary of the Interio Postmaster General, Attorney General Secretary of the Treasury Governor Robinson, D. A. Wella Secretary of War.....+.....Senator Thurman, Genoral McCiellan William R. Morrison, LQ C, Lamar, Senator Gordon, Secretary of the Navy Secretary of the Interior. Postmaster General... Altorney General, . Lyman. Trambull, If the result should give the election to Tilden and Wheeler it is gaid that Mr. Hendricks will accept the English mission, Further than this the democrasie quidnunes do not venture, The HeRa.y, as the organ of the people, is less in~ terested In the fortunes of politicians than in the wel- fare of the country. Scrutinizing th two lists we are gratified at their aspect, The country will be safe with either or uny of these Cabineis, Both are made for hard money, for an honest and economical adm: istration; with both the needed reforms are possible, With either we believe the break up of parties cannot be prevented. Wo donot place undue confidence ia these gu of the Cabinet makers; whoever becomes President will choose bis own constitutional advisers, But that the optoion of shrewd politicians should turn toward such names as we have, alter careiul inquiry, been led to set down above, shows what they regard as probable, and is so far of impor. tance, a3 it proves that their opinions make these ames the most conspicuous and probable. The blanks in the Hayes list are, ot course of pro-eminent impor- tance, If be means to drop the carpet-baggers be Will select for bis Cabinet the Southern men of in- ffaonce and charactor not concerned in any of the car. pet bag swindling in those Statesand able to draw a following alter them vi substantial citizepa All the political signs make it probable that if he should be- come President he will do this. The country te wearted and disgusted with such dirty work and such inter- minable fuss as the Chamberiains, l'ackards and Kelloggs mako inthe South. No administration can afford to countenance them, and we caunot doubt that ‘8 Wise politician Mr. Hayes would make new combi- nations jn the South which would be for the advantage AMERICAN BEEF FOR EUROPE. The shipmont of beef irom the Jersey City abattois to Englend this week has been so large that prices rose suddenly at tho castle market yesterday, The experiment of shipping hive stock will be tried this week, and If it prove successful extensive and rapid norcasiona of cattle tram the Went will be the resulta