186 



CONGRESS, UNITED STATES (ELECTORAL COMMISSION). 



Houses no power they did not possess under 

 the Constitution. It could neither enlarge nor 

 abridge their constitutional powers. It is be- 

 yond the authority of Congress, or of any other 

 tribunal, to enlarge or abridge the powers with 

 which the Constitution has vested that body. 

 A joint rule might formulate that power ; a 

 joint rule might indicate the manner in which 

 that power should be exercised; a joint rule 

 might prescribe the methods of proceeding in 

 the execution of the power ; but it could nei- 

 ther give power nor diminish power. In this 

 report the only objection made to the vote of 

 Louisiana is, that the returns for electors in that 

 State had never been canvassed or counted. It 

 was conceded that the certificate of the Govern- 

 or was regular perfectly regular on its face ; 

 and the honorable chairman of the committee, 

 after stating those facts, says that he declines 

 to make any suggestion to Congress as to what 

 disposition ought to be made of the vote. 



"May it please your honors, the evidence 

 taken by that committee was before the two 

 Houses of Congress when they met to count 

 the vote four years ago. The intimation of the 

 objection in the report was before those two 

 Houses, and that intimation found shape and 

 substance and form in a motion made by the 

 Senator from Wisconsin, that the vote of Lou- 

 isiana should not be counted. I am aware that 

 that Senator at the time maintained that Lou- 

 isiana was not a State bearing such relation to 

 the Federal Union as authorized her to par- 

 ticipate in the election of a Chief Magistrate; 

 but in that position, it is a well-known political 

 and historical fact, few or none of the Sen- 

 ators sympathized. He made his motion, stat- 

 ing different grounds for the motion ; but the 

 only ground before the Senate, conceding that 

 Louisiana was a State and could participate in 

 that election the only ground before the two 

 Houses of Congress upon which her vote could 

 be excluded by any possibility or under the 

 process of any sophistry or logic was that, 

 although the certificate of the Governor to the 

 election of the electors was regular in form, 

 yet the return lying behind that certificate, and 

 upon which that certificate purported to be 

 founded, had never been canvassed. The ques- 

 tion came up for determination in the Senate 

 on the 12th day of February, 1873 (as will be 

 seen by reference to page 1293 of the same 

 volume), and it was voted upon. Mr. Carpen- 

 ter's resolution, that the vote should not be 

 couuted, was determined in the affirmative, and 

 the vote was not counted." 



Mr. Commissioner Edmunds : " Have you 

 there, and will you read, the resolution adopted 

 by the Senate on that occasion ? " 



Mr. Merrick: "The only one I have been 

 able to find is Mr. Carpenter's resolution, ' that 

 the votes should not be counted.' He objected 

 to the vote,l$latHjg various grounds ; but the 

 only resolution I have been able to find is a 

 simple resolution that the vote of Louisiana 

 should not be counted." 



Mr. Commissioner Edmunds : " Without 

 stating in terms the grounds on which it pro- 

 ceeded ? " 



Mr. Merrick: "Yes, sir; I indicated that." 



Mr. Commissioner Edmunds : " I was only 

 inquiring for information." 



Mr. Merrick : " But I supplemented the in- 

 dication by this further statement, that there 

 was no ground before the Senate upon which 

 the vote could have been excluded, as far as I 

 can ascertain from the record, except that the 

 vote for electors had not been canvassed. If 

 there is any other ground stated in the report 

 of the committee, I have been unable to find 

 it. Mr. Carpenter entertained a different opin- 

 ion from nearly every Senator as to the pecul- 

 iar relations of Louisiana to the Federal Union. 

 He may have voted upon that ground ; but I 

 believe that no other Senator, or not more 

 than one or two, shared his opinion. I believe 

 his honor who made the inquiry of me voted 

 in the affirmative on the resolution that the 

 vote should not be counted. 



" Now, may it please your honors, I refer to 

 this precedent as authority for two proposi- 

 tions : First, that the testimony taken by a 

 committee of either of the Houses inquiring 

 into the regularity and legality of an electoral 

 vote is competent testimony to be considered 

 when the question arises as to what disposition 

 you shall make of that vote. Secondly, that it is 

 competent for Congress, under the Constitution 

 of the United States, to go behind the certifi- 

 cate of the Governor, and throw out a vote 

 where the testimony proves that that certifi- 

 cate does not properly indicate the wishes of 

 the people in the individuals that certificate 

 designates as the agents of the State; and, 

 those facts being established, it is competent 

 to discard the vote. 



" But, may it please your honors, in the case 

 of the State of Florida we shall not ask for 

 evidence going behind the certificate. This 

 case presents itself to the court in a peculiar 

 aspect. The evidence which we shall offer, 

 and which we claim to be admissible as to that 

 State, is evideuce furnished by the State her- 

 self, as indicated in the proposition read by the 

 distinguished gentleman with whom I have 

 the honor to be associated (Mr. O'Conor). 



"Two propositions as to evidence, then, 

 come before your honors: 



"First, whether the United States through 

 its Congress, or either or both Houses of Con- 

 gress, can, in reference to an electoral vote, in- 

 stitute an original inquiry itself, and by a com- 

 mittee of either House take testimony going 

 behind the certificate of the State, and inval- 

 idate that certificate on its own motion, when 

 the State still adheres to the regularity of that 

 certificate. That is one question a very im- 

 portant one ; but there is another, totally dif- 

 ferent from that. 



" Second, whether, when the Houses of the 

 Congress of the United States come to inquire 

 into the electoral vote and ascertain which 



