188 



CONGRES?, UNITED STATES (ELECTORAL COMMISSION). 



ing, in its primary meaning, is merely enumer- 

 ation, and is limited to that in all cases where 

 the subjects of the count are definitely ascer- 

 tained. To be sure, it is an important ques- 

 tion, as put by the learned counsel on the other 

 side What is to be counted ? There is no dis- 

 pute on that. It is the electoral votes ; and 

 the cases which are referred to this tribunal 

 are those of two sets of votes, and the power, 

 therefore, is implied to distinguish between 

 these several sets of votes, and ascertain which 

 is the vote lawfully to be counted. 



" What is the nature and extent of that im- 

 plied power incident to this right to separate 

 the lawful from the unlawful electoral votes ? 

 for upon the question of the limit of the in- 

 quiry which this body is authorized to make 

 under the act which organizes it depends the 

 solution of the question as to what evidence it 

 may look to for the purpose of determining the 

 fact which is the subject of its inquiry. I 

 think it involves, undoubtedly, the exercise of 

 certain discretion and judgment. It may in- 

 volve the decision of some questions of fact 

 not determinable merely by inspection of the 

 paper purporting to contain the vote, or to 

 constitute the vote ; as, for example, the very 

 case put by one of the learned gentlemen on 

 the other side : its genuineness, or whether it be 

 a forgery whether, if it be proven by a seal, 

 the seal be the genuine seal. It may also in- 

 volve the decision of some question of law, as, 

 for example, whether the paper offered is one 

 known to the law or made in conformity with 

 the law. 



" But this power, however described, wheth- 

 er as ministerial, administrative, political, or 

 otherwise, mast be carefully distinguished 

 from that judicial power which is exerted by 

 judicial courts under the jurisdiction to try 

 the title to an office by the prerogative writ of 

 quo warranto. In the exercise of that juris- 

 diction, the court, armed with its proper pro- 

 cess and the machinery of trial by jury, and 

 for the enforcement of evidence, goes to the 

 very truth and right of the matter, without re- 

 gard to the paper title. It ascertains, by a 

 scrutiny and the testimony of witnesses, who 

 in fact received the legal number of legal votes 

 to vest him with actual title to the office. Is 

 it proposed here to do that ? Why, if your 

 honors please, what length of time would be 

 required to investigate by recounting and re- 

 cantassing the popular vote that lies at the 

 foundation of the electoral vote in every State 

 in the Union, or even in those which are the 

 subjects of dispute in this count? And if you 

 cannot go down to the bottom if you cannot, 

 in probing and searching for frauds and errors 

 and mistakes, go through the long and black cat- 

 alogue of crime why stop at the first, in order 

 to take advantage of all the rest ? If this work 

 is the work of~tais tribunal, then it is to be 

 made thorough and searching. Certainly there 

 is not any principle of law or good morals 

 which, if the door be opened to that inquiry, 



requires you to stop before you have got 

 through. 



" I think it is plain that this commission is 

 not engaged in the exercise of that jurisdic- 

 tion. It is not invested with any portion of 

 that judicial power which is conferred or con- 

 stituted by the Constitution of the United 

 States ; and Congress, not possessing it itself, 

 could not confer it upon such a body as this, 

 which is created for the mere purpose of as- 

 sisting in the count of the votes, because it is 

 not such a court as Congress is authorized to 

 create for the purpose of receiving a grant of 

 the judicial power of the Constitution. I do 

 not doubt that the jurisdiction to try the title 

 to the office of President and Vice-President, 

 being judicial and properly exercised under the 

 power to issue writs of quo warranto, may be 

 vested by law in the Federal courts, as a case 

 at common law arising under the Constitution 

 and laws of the United States; but, until 

 vested, it remains dormant. Whether in point 

 of fact such legislation exists, either by a di- 

 rect act of Congress or indirectly by the adop- 

 tion of the Maryland statutes in the District of 

 Columbia, is a question upon which I am not 

 advised; but the fact that such a jurisdiction 

 either has been or may be evoked out of the 

 Constitution, is an unanswerable reply to the 

 doctrine that Congress, or this tribunal sitting 

 in its stead, has a right to make judicial inquiry 

 as in quo warranto into the title of any office. 

 I claim, provided there be no actual legislation 

 such as I have spoken of by Congress, in re- 

 spect to quo warranto in regard to President 

 and Vice-President, that there is no law, either 

 State or Federal, in reference to the office and 

 function of an elector. I maintain that there 

 is no law, either State or Federal, whereby 

 that title can be judicially investigated and 

 determined after he has cast his vote. 



" I maintain that no State can exercise such 

 jurisdiction after that event, because, although, 

 by the terms of the Constitution of the United 

 States, each State by its Legislature may deter- 

 mine the mode of the appointment, and in fact 

 make the appointment of its electors, yet the 

 function of voting for President and Vice- 

 President is exercised under the authority of 

 the Constitution of the United States ; and if 

 it were possible that such jurisdiction existed 

 in State tribunals under the authority of State 

 laws, it would be an easy matter, in the great 

 strife and struggle of .political parties in the 

 various States that constitute the Union after 

 the election, to interpose by judicial process 

 such delays in respect to the quieting of the 

 title of the parties having the regular and for- 

 mal appearance of election as to defeat by an 

 injunction, as well as a quo warranto, the right 

 to cast the vote at the time when by the Con- 

 stitution and laws of the United States it is 

 necessary that it should be cast. And so it 

 would be in the power of party and faction at 

 any time, when beaten at the polls by the popu- 

 lar vote, to resort to these extraordinary writs 



