CONGRESS, UNITED STATES. 



149 



be safer for us by a statute to limit them? 

 Then we shall know where the boundary is." 



Mr. Conkling: "The boundary of this power 

 is not only one of the bones of contention, but 

 the very marrow of it. If there were no doubt 

 in that regard, we should need no bill. If the 

 two Houses, and the members of the two 

 Houses, were clear and concurrent in their 

 views, we should need no commission. It is 

 because of an irreconcilable conflict of opinion 

 that we propose to execute the Constitution in 

 this way ; and, if I have not so said before, I 

 want now to say that, in my opinion, it is not 

 only a competent execution of the Constitution, 

 but one substantial, effectual, and compliant 

 with its spirit strictly. But the Senator from 

 Massachusetts says he has heard the Senator 

 from New York say something, and the Sena- 

 tor from somewhere else say something ; may 

 I remind my honorable friend that what I may 

 say in this regard, or even what he may say, is 

 only a puff of air? The commission is to say, 

 on the oaths of its members and subject to our 

 review, what by the Constitution is committed 

 to it. If the Senator from Massachusetts shall 

 be of this commission, what he might think, or 

 if I were to be of it what I might think, would 

 then be of great moment. I submit to him, it 

 is anise and cumin, and not of the weightier 

 matters of the law, to consider what may be 

 thought by this Senator, or that Senator, of the 

 range and province within which this commis- 

 sion may move. They must ascertain for 

 themselves. If the question in the State of 

 New York is whether the Court of Oyer and 

 Terminer only, or also the Court of Sessions, has 

 power to try indictments for homicide, no mat- 

 ter whether it be more or less probable that A 

 B or C D may be convicted in one court or the 

 other, the court passes upon the question of its 

 jurisdiction. So this court of first instance, if 

 it holds for example that it has no power to go 

 behind the certificate of the Governor of Ore- 

 gon ; that, although he certified three men 

 were electors, one of whom confessedly I say 

 confessedly in the popular sense never re- 

 ceived a majority by which alone he could be 

 chosen; suppose they hold that that certificate 

 is a barrier which neither House can pass, and 

 that the three votes are to be counted, as cer- 

 tified by the Governor of Oregon, so be it ; and 

 the two Houses are brought to say whether 

 they will approve, or will disapprove, that de- 

 cision. On the contrary, suppose they say, 

 ' We will go behind the certificate; we will go 

 behind the certificate in Louisiana, not to in- 

 quire about the weight of evidence, not to find 

 out whether the returning board found rightly 

 or wrongly, not even to inquire whether they 

 found honestly or corruptly, but we will go 

 behind the certificates merely to inquire as a 

 jurisdictional question whether the returning 

 board of Louisiana had before it, and was au- 

 thorized to act upon, the evidence of the popu- 

 lar will.' They so report, and the honorable 

 Senator from Massachusetts, having one vote, 



and a potent voice, will pass upon the report. 

 On the contrary, suppose they say they have a 

 right to go a little further than that, and to 

 ascertain whether the returning board of Lou- 

 isiana, or the Governor of Oregon, was moved 

 by corrupt motive. Suppose they hold that 

 they may search even so far, and condemn 

 what has been done in Oregon because greed 

 or corruption moved the hand that held the 

 pen when the certificate was written. Upon 

 such a ruling the Senator from Massachusetts, 

 sitting as a member of the court of review, is 

 to pass on his oath and on his responsibility as 

 a representative of a State." 



Mr. Dawes: "I am sincerely anxious to un- 

 derstand the whole scope of this bill ; and, if I 

 understand the Senator aright now, he states 

 that there was in this committee an irreconcil- 

 able difference as to how far " 



Mr. Conkling : " The Senator must pardon 

 me there. I did not so state. I spoke of noth- 

 ing in the committee ; I spoke at large, saying 

 that there is an irreconcilable difference of 

 opinion. I avoided saying anything about the 

 committee." 



Mr. Dawes: "I think the Senator is right. 

 The Senator has corrected me properly. The 

 Senator says the committee recognized an ir- 

 reconcilable difference upon how far the Con- 

 stitution will permit this commission to go into 

 an investigation of matters that belong to the 

 States. To meet that irreconcilable difference, 

 as I understand him to say, they propose in 

 the bill to take the construction of the Consti- 

 tution from this commission. 



" When I pressed the Senator from New 

 York to tell me what he understood to be its 

 limit, how far this court could go in its juris- 

 diction, I drew out from him the confession 

 that this bill has been so framed that the com- 

 mission will have no other limit than what its 

 discretion shall put upon this court. At first 

 the Senator from New York told me that they 

 had defined this court as every court in the 

 State of Massachusetts was defined in the limi- 

 tation of its jurisdiction ; but when I called 

 his attention to the fact that the first great 

 prominent feature of a court in Massachusetts 

 was a limit by law to its jurisdiction, the Sen- 

 ator felt it necessary then to treat the State of 

 Massachusetts as out of the pale of any sort of 

 construction which it was proper or good or 

 wise to put upon the jurisdiction of this court. 

 I say to him that, in the object and purpose of 

 this commission, the people of the State of 

 Massachusetts are in sympathy with the com- 

 mittee, and are ready to support it ; but they 

 are not ready to create a court that shall go in- 

 to Massachusetts and take up the work, which 

 they by law have confided to their Governor 

 and Council, to count and determine the vote 

 by which Massachusetts has appointed her 

 electors. 



" The Senator says that, if everybody were 

 as perfect as Massachusetts, the electoral vote 

 would count itself. I only wish to say that, 



