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CONGRESS, UNITED STATES. 



Courts of their States men who have held 

 positions in the highest judicial tribunals of 

 the land, are out in elaborate opinions on one 

 side or the other side of that great question. 

 How are you to decide that in a bill, and ex- 

 pect it to pass both Houses of Congress? 



" That is the third. Let us proceed to the 

 fourth : that touches the amendment. It is, 

 that it is competent to go behind the certifi- 

 cate of the Governor ; and the directly opposite 

 opinion, that it is not competent to go behind 

 the certificate of the Governor. 



" The fifth is, that it is competent to go be- 

 hind the decision of a canvassing or returning 

 board, and, in opposition, that it is not compe- 

 tent to do so. Are you going to decide that 

 question, and are you going to decide that in a 

 bill? The Senator from Massachusetts inti- 

 mates that if his amendment be put in the bill, 

 there are certain Senators here who will not 

 vote for it. He is quite right. He knows he 

 is right. He knows it would not get one vote 

 on this side of the Chamber, and it would not 

 get one vote of a particular party in the other 

 end of the Capitol, and yet he urges it, and 

 still he talks about being in favor of the bill. 

 Why, sir, upon that question, and upon other 

 questions, we are obliged to submit in the first 

 instance to this tribunal, composed as it is, to 

 decide, reserving to ourselves power to reverse 

 its decision if the two Houses can agree to re- 

 verse it. 



" This question of going behind a returning 

 board has a great many points in it. The Sen- 

 ator from Massachusetts seems to think that 

 the only point in going behind a returning 

 board is, whether we can go clear to the bot- 

 tom and find out how seven millions of people 

 vote. If he says that he is opposed to that, I 

 say, So am I. But that is one thing. Going 

 behind the decision of a returning board is 

 quite another thing. And that brings me to 

 notice this point of difference. It is held by 

 some that the decision of a returning board 

 may be impeached for want of jurisdiction, 

 and by another set that it cannot be. I com- 

 mend that to my friend from Massachusetts, 

 who is a lawyer. On the one side, it is said 

 that every act done by any tribunal, from the 

 highest court in the country to that of a single 

 individual, if it is beyond his jurisdiction, is 

 utterly null and void, and that returning boards 

 are no exception to this rule ; and if they, be- 

 yond their jurisdiction, ultra, vires, undertake 

 to disfranchise people, every act of disfran- 

 chisement is utterly null and void. On the 

 other hand, this proposition is denied. Let me 

 submit to my friend from Massachusetts that 

 the decision of the proposition the one way or 

 the other does not take him down to the seven 

 millions of voters who cast their votes at the 

 last presidential election, nor one step toward 

 it. Furthermore, let me tell him that that 

 does not even touch the integrity of the re- 

 turning board ; for, if these returning boards 

 had been composed of the eleven apostles after 



Judas Iscariot had hung ' himself, and were 

 they as pure as human tribunals could be, yet 

 if they went beyond their jurisdiction, in the 

 opinion of some men their acts would be ut- 

 terly void. 



" Then, sir, comes another question : Sup- 

 posing them not to have gone beyond their 

 jurisdiction, but to have acted fraudulently, 

 some say that their decision may be impeached 

 for the fraud, because fraud vitiates every- 

 thing, even the decision of a court ; and others 

 say that no such inquiry is admissible at all. 



"Then it is said that, if the decision of a 

 returning board can be reviewed, the decision 

 of all other election officers may in like man- 

 ner be reviewed; and so you would have to 

 review the decision of the one or two or three 

 hundred thousand election officers in all the 

 United States, and see whether they complied 

 with the law or not. On the other hand, it is 

 said that no such absurdity follows. That is 

 the eighth case of conflicting opinion. 



" Then the ninth case is this : It is said that, 

 if the acts or omissions of election officers can 

 be reviewed, the qualifications of the voters, 

 the people themselves, and all the circum- 

 stances of the election, of bribery, intimida- 

 tion, etc., may be inquired of ; and that propo- 

 sition is denied on the other side. 



u Then the tenth case is : That the decision 

 of the highest State court as to the powers of 

 her returning board is conclusive. The oppo- 

 site opinion is that it is not conclusive. 



" Then the eleventh case of antagonism is : 

 That, in adjudicating what are electoral votes, 

 the strict rules of courts of law must govern in 

 the reception of testimony; and the opposite 

 opinion that a broader rule, the parliamentary 

 rule of evidence, is the true rule. 



" Now, sir, not to fatigue the Senate with 

 further illustrations, here are eleven clear and 

 well-stated propositions upon which the most 

 directly antagonistic opinions are held ; and the 

 decision of any one of these propositions in 

 this bill, if it could be made, would most prob- 

 ably decide the present contest in regard to 

 who is President-elect. How, then, could any- 

 body expect that your committee would under- 

 take a task that would make their bill a felo 

 dt se that would be certain to defeat it, and 

 hold them up as mere partisans, or as men 

 without sense in the conduct of public affairs? 



" Sir, we took the only course that was open 

 to us. We provided a tribunal, just as indi- 

 viduals who cannot settle their controversies 

 must go to the courts, in order that they may 

 be settled by a judicial tribunal. Just so, when 

 these two Houses cannot agree, they must call 

 in the benefit of an honest, an able, and a 

 learned tribunal, and weigh its decision before 

 they ultimately decide ; and that is all that 

 this bill does. Therefore it is that this bill 

 leaves every question to this tribunal with the 

 power, as I said before, of review and re- 

 versal by the two Houses. I will speak more 

 about that presently. It decides not one of 



