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CONGRESS, UNITED STATES. 



them, this commission may inquire at large, by 

 canvassing the votes cast in parishes or even 

 precincts, by going into the question whether 

 those who voted were all that should have 

 voted, whether they voted as they wished to 

 vote in short, that the commission may be- 

 come a national 'returning board.' The law 

 has this ancient maxim ' that is certain which 

 can be rendered certain.' We say in this bill, 

 'take the Constitution as it stands; that is 

 your guide ; there you will find the boundaries 

 of your power ; you shall not overpass them ; 

 execute the Constitution, and stop.' 



"But, says one Senator, why does not the 

 bill specify all the things these men are to do ? 

 To ask the question is to suggest unnumbered 

 answers. Answers spring up as the army of 

 Roderick Dhu sprang from the heather, when 

 a whistle garrisoned a glen. In the first place, 

 there is an irreconcilable difference of opinion 

 as to the nature and extent of the power of 

 the two Houses, or either, to pry into or pene- 

 trate the act of the States. In the next place, 

 were all agreed, it would be impossible in a 

 bill to embody a treatise or commentary which 

 should provide for every contingency or possi- 

 bility. It was Dean Swift who made a written 

 schedule for his attendant of all the things he 

 was to do; each and several his duties were 

 set down; but on a Sunday Dean Swift fell 

 into a ditch and called for assistance, but the 

 attendant produced his schedule and said he 

 found nothing there which required him to 

 help anybody out of a ditch on Sunday. It 

 was supposed by the committee, as the sense 

 of its members was only finite, and very finite, 

 that when they called, in addition to five picked 

 men of each House, five experts in the law, 

 men who had been selected from the great 

 body of the nation for their training and adap- 

 tation to exploring legal distinctions and ascer- 

 taining legal truth, it was hardly worth while 

 to attempt to accompany this trust of provi- 

 sional authority with a minute bill of particu- 

 lars of all the things which might be done, 

 and how, and what in detail must not be 

 done. 



"It might have been possible, by restraint 

 and exclusion, to put fetters on these fifteen 

 members. Every Senator who hears me knows 

 that any attempt to run the exact boundaries 

 of the power to admit evidence, any attempt 

 by the concurrent action of the two Houses to 

 agree upon a universal solvent, to come to that 

 exact unit of accuracy in defining jurisdiction 

 and pertinence of evidence which all would 

 approve in advance, although a possibility in 

 theory, would be impossible in reality. 



" The Senator from Massachusetts (Mr. 

 Dawes), in a tone which few beyond me hear, 

 inquires whether I mean that they have no 

 limit-in this bill. Mr. President, I had sup- 

 posed that the Constitution had raised not only 

 a hedge and fence, but a wall of limit to the 

 powers it confers. I supposed that, when five 

 of the most largely - instructed and trusted 



members of the Senate, and five of the most 

 largely-instructed and trusted members of the 

 House, were authorized to meet five judges of 

 the highest and most largely-instructed judicial 

 tribunal of the land, we might trust to them to 

 settle what a court of oyer and terminer settles 

 whenever it is called upon to determine wheth- 

 er it has jurisdiction to try an indictment for 

 homicide or not. I supposed that, giving it the 

 instrument by which its jurisdiction is to be 

 measured, we could trust this provisional tribu- 

 nal of selected men to run the boundary and 

 fix the line marking their jurisdiction, and to 

 blaze the trees. I hear a voice ask, 'Where 

 they please?' This cannot have been the 

 voice of the Senator from Massachusetts. That 

 Senator is a lawyer, and he knows that judges 

 cannot lawfully do anything because they 

 please. They must stop where the law stops. 



" I have repeatedly insisted that the Consti- 

 tution and the existing law is the boundary ; 

 and I believe the act of 1792 is the only statute 

 applicable. . No, I am wrong; the act of 1845, 

 touching the choice of presidential electors, 

 may also have a bearing. Inasmuch as the 

 Constitution, the law, and the acts of Con- 

 gress, of which I think there are but two, pre- 

 scribe the power; inasmuch as we make the 

 existing law the guide-board ; inasmuch as we 

 command and conjure the commission to go 

 according to the Constitution, and to keep 

 within its limits, I supposed it could not be a 

 roving commission to traverse at large the 

 realms of fact, superstition, and fiction." 



Mr. Dawes, of Massachusetts, said : " I hear 

 the Senator state distinctly that this commis- 

 sion is to be bound by the Constitution ; but I 

 hear him state just as distinctly that, in his 

 opinion, this commission, being bound by the 

 Constitution, could not invade what I deem to 

 be the prerogatives of the States to settle the 

 title of their own electors. If I could hear 

 him and all of the members of that committee 

 make the same clear and unequivocal assertion 

 I should be greatly comforted. My discontent 

 and apprehension arise from the fact that, 

 while I hear him make this equally unequivo- 

 cal expression of his own opinion of what the 

 boundary is, I hear others with equal distinct- 

 ness, and clearness, and positiveness, say that, 

 though they also believe this commission to be 

 bound by the Constitution, they believe the 

 Constitution authorizes them to go into and 

 settle questions which, in my mind, belong ex- 

 clusively to the States to settle. That is what 

 troubles me, and the Senator will pardon me 

 for interrupting him in the way I have in order 

 to get as distinctly as I could from the mem- 

 bers of this committee, not only what I knew 

 before every one of them would say, that the 

 commission would have to limit the exercise of 

 their power by the Constitution, but, inasmuch 

 as one member of this committee believes the 

 Constitution will stop them at one point, and 

 another member of the committee believes it 

 will not, I suggest to the Senator, would it not 



