CONGRESS, UNITED STATES (ELECTORAL COMMISSION). 



177 



" I therefore think it may be assumed that 

 the indefinite language of this act of Congress 

 confers no such powers as claimed upon this 

 delegated commission, organized to tide over 

 a difficulty, and to do the ministerial act of 

 counting the votes in the stead of the Presi- 

 dent of the Senate. 



u I have spoken of the narrow circuit of dis- 

 cretion that surrounded the ministerial act of 

 counting. 



" Now, what is that narrow circuit of discre- 

 tion ? It is broad enough to ascertain whether 

 the papers before you as certificates are genuine 

 and not counterfeit, and are duly and truly 

 verified by State authority as required under 

 the Constitution and laws. It is broad enough 

 to ascertain whether the Electoral College has 

 complied with the law. This is a ministerial 

 examination. Do the papers upon their face 

 contain evidence of fraud, of doubt, of irregu- 

 larity, of error? Is Certificate No. 2 on its 

 face more regular, more free from apparent 

 fraud, more worthy of being received in evi- 

 dence, than Certificate No. 1? Is Certificate 

 No. 3 a truer certificate, more in compliance 

 with law, and bearing upon its face the 

 greater evidences of its authenticity ? Which 

 is the authentic certificate and the authen- 

 ticated vote ? These are the questions to be 

 ministerially settled. Neither Congress nor 

 any officers created by it have the right to re- 

 count popular votes ; for the Constitution says 

 expressly it is the electoral votes that are to 

 he counted not the popular vote. Over this 

 Congress has no power under the presidential 

 clauses of the Constitution. 



" Every phase of the discussion confronts 

 ns, in a narrower or broader circle of reasoning, 

 with this one question, Are you to revise and 

 adjudicate all the proceedings of State elec- 

 tions for electors of President and of all State 

 tribunals relating thereto appointed by State 

 laws? We always come around to that. Or 

 are you to count what is properly certified and 

 presented to you? If you affirm the first 

 proposition, you must declare the Constitution 

 amended by this tribunal ipso facto amended ; 

 so that it shall read : ' Each State shall appoint, 

 in such manner as the Legislature thereof may 

 direct, a number of electors equal,' etc., subject, 

 however, to revision by the Congress of the 

 United States, who shall have power to overrule 

 the State authorities in determining the college 

 of electors. Would the Constitution ever have 

 been adopted with that construction? 



" We are brought inevitably to such an 

 amendment by construction. Yet the Consti- 

 tution sought to preserve absolutely the right 

 of the State to appoint its electors without 

 Federal dictation. It required every ballot to 

 be cast on the same day throughout the Union, 

 that it might be free from every centralized 

 influence. Every member of the commission 

 knows what the history of the adoption of this 

 clause is, and yet we are brought perpetually 

 by the claims of the other side to this one 

 VOL. xvn. 12 A 



question : Shall we now go on and complete 

 the absorption of this most absolute, indepen- 

 dent, and unquestioned right of the States to 

 appoint their electors in their own way, and 

 hold that it is subject to revision and change 

 by the two Houses of Congress? 



" The objectors asked, Are we, then, to take 

 the certificate of the proper State officers 

 against the truth ? Is there any reason why, 

 on the other hand, it should not be asked, Are 

 we to take the certificate of these fifteen gentle- 

 men against the truth ? There is a necessity 

 in public affairs, and in the very organization 

 of society and of political communities an ab- 

 solute necessity to have some final jurisdic- 

 tion. There must be, somewhere, an authority 

 by which we stand, even if it be impeached by 

 charges of fraud. Where is that authority ? 

 Is it here? Is it in the Governor? Is it in the 

 canvassing board ? Is it in the State Legisla- 

 ture? Is it in the State judiciary ? Where is 

 it? I submit that, for the purposes of this 

 case and under the Constitution and laws, it 

 is found where the State authority concludes ; 

 and that if the Constitution and laws of the 

 United States, in manner, in time, in substance, 

 so far as sLown by the duly certified results, 

 are conformed to, there is the determination 

 of the case. 



" I regret to pause, may it please the com- 

 missioners, to repel the suggestions made 

 against this returning board. It was said that 

 the court had found their return fraudulent. 

 There is no evidence in the records of the 

 court that that allegation is true. I have reed 

 the decision, and, in answering their argument, 

 I must say there is not an allusion to the fact 

 that that canvassing board acted fraudulently. 

 It was alleged that their action, which had 

 conformed to the action two years before, was 

 u misinterpretation of their rights under the 

 law ; and in the document submitted a few 

 moments ago to the commissioners, I think 

 on the second page, there is a copy of the 

 essential section of the law. The important 

 language of the act to which I wish to call the 

 attention of the commissioners, in the statutes 

 of Florida regulating the powers of this board, 

 is this : 



If any such returns shall be shown or shall ap- 

 pear to be so irregular, false, or fraudulent, that the 

 board shall be unahle to determine the true vote for 

 any such officer or member, they shall so certify, 

 and shall not include such return in their determina- 

 tion and declaration. 



" Thus it will be seen that the canvassing 

 board of Florida were to inquire if these re- 

 turns appeared to be so irregular, false, or 

 fraudulent, that the board was unable to ascer- 

 tain the true vote. That was their function. 

 In exercising that function they not merely 

 passed upon the returns of the county can- 

 vassers, but upon the certified results in pre- 

 cincts. 



" The court said they had overstepped the 

 law. And here I must remind the gentlemen 



