176 



functions of their offices. Yon cannot say to 

 those gentlemen, ' We will go behind the reg- 

 ular certificates provided by the Constitution 

 and the law just so far as will accommodate 

 you to find whether it is true or not that 

 what you allege to be fraud was done against 

 your interest in one or two counties.' We 

 must, if we go behind the electoral college, go 

 where all the allegations of fraud on both sides 

 assert its existence. It is the popular vote 

 that those gentlemen say you are to review, to 

 recanvass, and to ascertain. Where does this 

 commission get its power for that? By the 

 act organizing the commission, you are vested 

 with the right to consider just so much of this 

 alleged case as Congress might consider ; and 

 when I say ' Congress,' I include, of course, the 

 two Houses. Let me ask, then, What is that 

 limit? We must clear our minds from what 

 has grown within the later years to be most 

 dangerous to the reserved rights of the States 

 and to the rights of the people, namely, the 

 assertion of unlimited universal power of each 

 House, or both Houses, to assume jurisdiction 

 over all things or questions having a national 

 aspect or relation. No such undefined grasp 

 was intended by the Constitution. Suppose 

 this act and I beg the attention of gentlemen 

 to it suppose this act had provided that, in- 

 stead of surrounding the president of this 

 commission with these gentlemen and confer- 

 ring these indefinite powers, Congress had 

 chosen to surround the President of the Senate 

 with only the representatives of the Senate and 

 of the House, would you have thought of at- 

 tributing judicial power to them ? The same 

 power that justifies Congress, under the Con- 

 stitution of the United States, in providing that 

 the counting should be done by this commis- 

 sion, would have justified them in providing 

 that the counting should be done by the Presi- 

 dent of the Senate alone. Admitting that 

 Congress has power to that extent to regulate 

 the counting, you must guide yourselves by the 

 same principles in determining your jurisdic- 

 tion that you yourselves would decide limited 

 the jurisdiction of the President of the Senate 

 as sole counting agent were he designated by 

 this act to count the votes alone. 



" Now, suppose that act in existence, and 

 you have it by law that the Vice-President 

 shall not only open, but shall himself count the 

 votes. If the Constitution had said, ' and the 

 votes shall then be counted by Aim,' the same 

 result would have been attained. If, instead 

 of ' by him,' you add the two words, 'by Con- 

 gress,' you do not vary the power at all. 

 Whatever counting is to be done is to be done 

 either by the President of the Senate or by the 

 two Houses of Congress. In either case it is 

 only to ' count.' That is the substance. The 

 rest is agency. Would you maintain for one 

 moment, if thaTTfere the provision either of 

 Constitution or law, that the President of the 

 Senate should count the votes? that he had 

 the right to send out commissioners to take 



depositions; 'to take into view' all other 

 papers ; to reach evidence at will ; to recan- 

 vass the popular vote of the State of Florida ; 

 to organize the whole machinery alike of ex- 

 ecutive canvassing boards of a State and of all 

 the judicial courts of the State? Is there a 

 gentleman on this commission from either 

 House of Congress, or from the Supreme Bench, 

 who would tolerate for a moment the exercise 

 of such power under the simple language, ' shall 

 count the votes'? If not, then the act has 

 given no additional power to fifteen men be- 

 yond that power which, by the like terms, 

 would have been conferred upon one man ; 

 and hence I affirm that there is in this law no 

 power whatever to do more than is necessarily 

 implied in the words, ' and the votes shall then 

 be counted.' 



" If that be so, then we come to the next 

 question, What does the word ' count ' mean ? 

 And is the power of that sort that implies some- 

 thing not ministerial, or within the narrow 

 circuit of discretion that belongs to the minis- 

 terial power ? Does it imply, as gentlemen on 

 the other side claim, the unlimited circuit of 

 the judicial power ? If it does, your Constitu- 

 tion in its very framework and organization 

 is violated. 



" The first three articles of the Constitution 

 divide the functions of this Government into 

 legislative, executive, and judicial. The third 

 article affirms positively that the judicial power 

 is vested in one Supreme Court, and in inferior 

 courts to be established. 



" So the first article says that all legislative 

 power granted is vested in the Congress of the 

 United States. So the second article says that 

 the executive power is vested in the President. 

 Your limits are drawn by the Constitution of 

 your country, which tells you that the several 

 powers of this Government, the three great 

 powers, shall not by any contrivance be merged 

 or mingled in any tribunal, whether consti- 

 tuted of the three divisions, or of any or either 

 of the three. The safety of our people hangs 

 upon it : the safety of our States hangs upon it ; 

 all the elements of national safety hang upon 

 the observance of that division of the func- 

 tions of government. It is the greatest act in 

 the progress of modern civilization as con- 

 trasted with the ancient and the Eastern, which 

 combined all functions in one supreme head. 

 It withholds each department of power from 

 assuming either of the other essential powers 

 of the Government, that the people may be 

 saved from the tyranny of irresponsible au- 

 thority. 



" The claim made on the other side confuses 

 and merges them in so far as you are asked to 

 exercise judicial functions in the determination 

 of rights. The very language used this morn- 

 ing was, that your powers were coextensive in 

 this matter with those of a court trying a pro- 

 ceeding by quo warranto. Are you, then, a 

 court under the third article of the Constitu- 

 tion? 



