192 



CONGRESS, UNITED STATES (ELECTORAL COMMISSION). 



the step to be taken behind the record of the 

 final State cajvass, to serve the needs and to 

 accomplish the justice as proposed by the 

 learned counsel for th'e objectors against the 

 Hayes certificate, the principle upon which this 

 evidence is offered, if their occasions required 

 it, if justice required it, if the powers of this 

 commission tolerated it, would carry the scru- 

 tiny and the evidence to whatever point this 

 complete correction or evisceration of the final 

 canvass would demand. 



" I am at once, therefore, relieved from any 

 discussion, as practical in this case, except so 

 far as illustration or argument may make it 

 useful pro or con, of any consideration whether 

 a Governor's certificate could be attacked as 

 itself being not a Governor's certificate, but a 

 forgery. That is not going behind the Gov- 

 ernor's certificate. That is going in front of 

 the Governor's certificate, and breaking it down 

 as no Governor's certificate. That is not the 

 question you are to consider here. There is 

 certainly no reason, on principle, that when a 

 Governor's certificate is required for any so- 

 lemnity or collusiveness of authentication, a 

 forged paper should be protected because it is 

 called a Governors certificate. Neither does 

 their offer of proof suggest any debate as to 

 whether the fact to be certified, by the Governor, 

 the substance that his certificate is to authen- 

 ticate, can be made the subject of extraneous 

 evidence with a view to show that the fact to 

 be certified is discordant with the certificate, 

 and that the fact must prevail over the inter- 

 polated false certificate of the fact. 



"There can be uo escape from this criticism 

 on their offer of proof, unless our learned op- 

 ponents ask your assent to a claim that, when 

 the act of Congress requires the Governor's 

 certificate as to the list of persons that have 

 been appointed electors, it requires from the 

 Governor a certificate that every stage and step 

 of the process of the election has been honest 

 and true and clear and lawful and effectual, 

 and free from all exception of fraud. Unless 

 you make that the fact to be certified by the 

 Governor, you lay no basis for introducing evi- 

 dence of discord between the fact to be certified 

 and the fact that has been certified. Without 

 disguise, therefore, the proposition is that, 

 whether or no there might be occasion for ex- 

 traneous proof to falsify a Governor's certificate 

 on the ground of its own spurious character, 

 or on the ground of its falsely setting forth the 

 fact professed to be stated, and admitting the 

 Governor's certificate to be genuine, and ad- 

 mitting the fin&l canvass, duly filed and re- 

 corded, to be in accord with the certificate, 

 this commission stands at the same stage of 

 inquiry and with the same right to investigate 

 the election itself to the bottom as a judicial 

 court exercising^he familiar jurisdiction of quo 

 warranto. 



"I have said that this commission cannot 

 receive evidence in addition to the certificates 

 of the nature of that which is offered ; that is, 



evidence that goes behind the State's record of 

 its election, which has been certified by the 

 Governor as resulting in the appointment of 

 these electors. One reason of this proposition, 

 and on which sufficiently it rests, is that that 

 is a judicial inquiry into the very matter of 

 right, the title to office. This inquiry accepts 

 the prevalence of the formal, the certificated, 

 the recorded, title of the electors, and pro- 

 poses then to investigate as inter partes, as a 

 matter of right, which of two competing lists 

 of electors is really elected on an honest and 

 searching canvass and scrutiny of the State 

 election. It undertakes a function that is judi- 

 cial ; and the powers for its exercise are at- 

 tempted to be evoked by their necessity for 

 the exercise of the function assumed. What 

 are adequate means? Adequate means for 

 that judicial investigation are plenary means. 

 No means are adequate for that inquiry that 

 are not plenary. But no plenary judicial pow- 

 ers, no plenary powers for inquiry into fact and 

 determination of law, judicially, can be com- 

 municated by Congress except to tribunals that 

 are courts inferior to the Supreme Court, and 

 that are filled by judges appointed by the Pres- 

 ident of the United States and confirmed by 

 the Senate. "Will any lawyer, expert or inex- 

 pert, mention a topic or method of judicature, 

 of jurisprudence, that involves the possession 

 of means of larger reach and a more complete 

 control of powers than the trial of a quo war- 

 ranto for an office that is to search an election ? 

 But not only is it beyond the power of Con- 

 gress to transfer to this commission the powers 

 of a court of this plenary reach and efficiency, 

 but on the topic of quo warranto to try the 

 title of an office they would find a subject of 

 jurisdiction in regard to which the Constitution 

 had interposed an insurmountable barrier to 

 its devolution on a court like this. The quo 

 warranto is a matter and an action of the com- 

 mon law. It involves, as matter of right, the 

 introduction of a jury into its methods of trial. 

 No title to office on a contested election was 

 ever tried without a jury. The seventh article 

 of the Constitution requires that, in suits at 

 common law, the right of trial by jury shall be 

 preserved, and their verdict shall never be re- 

 examined in any court of the United States 

 except by the rules of the common law. 



"I may ask your attention, in connection 

 with the topic that I last discussed, and in per- 

 tinent relation to the present, to the case of 

 Groome t. Gwynne, in 43 Maryland Reports, 

 572, especially at page 624. This case shows 

 that this argument, that a duty attributed by 

 law or the Constitution must carry to itself, in 

 the functionary charged with its exercise, all 

 the powers necessary, upon the ground that 

 the duty must involve the powers, finds no 

 place in our jurisprudence; the argument is 

 the other way. If the functionary, if the com- 

 mission, has not been clothed with the neces- 

 sary faculties, then the duty is not accorded ; 

 or, the means of its exercise not being fur- 



