194 



CONGRESS, UNITED STATES (ELECTORAL COMMISSION). 



" That is the State's final designation of the 

 person that has been appointed an elector un- 

 der the Constitution of the United States. Had 

 these contestants any such authentication of 

 their right, and have they proposed any such 

 evidence of right as in existence on the 6th day 

 of December ? Have they questioned the com- 

 pleteness of the Hayes electors' warrant to at- 

 tend and discharge their duty, that clothes the 

 vote when cast with the complete qualification 

 under the State laws and the State's action ? We 

 have the Governor's certificate and he is the 

 very person that passed officially upon that 

 question which furnishes the authority to the 

 electors to meet and act that this is the list of 

 the electors appointed. OmniaprcBSiimuntur rite 

 actx ; but there is no presumption needed here. 

 These certificates under the State law form no 

 part of the return to the President of the Sen- 

 ate; but when the same Governor executes 

 under Federal la\v the same duty and upon the 

 same evidence as under State law, we have 

 in this certificate, now here, adequate authen- 

 tication of the completion of the transaction 

 by which the State appointed the Hayes elec- 

 tors. 



"Now we como to consider the general doc- 

 trina as to what the powers ar3, and what the 

 arrangement and disposition of those powers 

 are, under the Constitution of the United 

 States in the transaction of choosing a Presi- 

 dent. In tha first place, the only transaction 

 of choosing a President begins with the de- 

 posit, so to speak, in the Federal urn, of the 

 votes of cartain parsons named and described 

 in the Constitution as electors. From the mo- 

 raant of that deposit the sealed vote lies pro- 

 tected against destruction or corruption in the 

 deposit provide! for it, the possession of Fed- 

 eral officers in Federal offices. The only other 

 step after that is the opening of those votes 

 and their counting. All that precedes the de- 

 posit of the votes by electors relates to their 

 acquisition of the qualifications which the 

 Constitution prescribes. Those qualifications 

 are nothing but appointment by the State, and 

 with that the act of Congress and the Federal 

 Constitution, with due reverence to State au- 

 thority, do not interfere. It has been provid- 

 ed, under a rule of praienca, that the electors 

 shall all -be appointed on the same day in all 

 the Stat33. It has baen provided that they 

 shall meat and cast their votes on the same 

 day. The latter provision fixes a duty in the 

 transaction of toting for President. The other 

 is the only intrusion upon State authority in 

 the absolute choice of the time and manner of 

 appointment ; Congress may prescribe that the 

 time of voting shall be the same in all the 

 States, and Congress has so prescribed. 



" What are we to gather in respect to the 

 stage of this transaction which is the deposit 

 of the Federal vote for President by the quali- 

 fied electors? It is their own vote. They are 

 not delegates to cast a vote according to the 

 instruction of thalr State. They are not dep- 



utized to perform the will of another. They 

 are voters that exercise a free choice and au- 

 thority to vote, or refrain from voting, and to 

 vote for whom they please ; and, from the mo- 

 ment that their vote is sealed and sent forward 

 toward the seat of Government, no power in 

 a State can touch it, arrest it, reverse it, cor- 

 rupt it, aetract it. Nothing remains to be done 

 except count it, and count it as it was deposit- 

 ed. The wisdom of the secret ballot and of 

 its repose in the . possession of the President 

 of the Senate secures the object, ut nihil in- 

 novetur. The vote is to be opened and count- 

 ed, in contemplation of law, as freshly as if it 

 had been counted on the day it was cast in the 

 State. 



" These electors at our present election, three 

 hundred and sixty-nine citizens in number, not 

 being marked and designated by any but polit- 

 ical methods, are by the Constitution made de- 

 pendent for their qualification upon the action 

 of the State. If the State does not act, there 

 are no qualified electors. If the State does act, 

 whatever is the be-all and the end-all of the 

 State's action up to the time that the vote ia 

 cast, is the be-all and the end-all of the quali- 

 fication of the elector, and he is then a quali- 

 fied elector, depositing his vote to accomplish 

 its purpose, and to be counted when the votes 

 are collected. 



"Let me find for you those constitutional 

 limitations upon the supposed quo warranto 

 procedures that were to cover investigations 

 into thirteen or thirty-eight States before the 

 votes could be counted. Why, the second sub- 

 stituted election, on the failure of the first, 

 must end by the 4th of March. What room is 

 there to interpolate quo warranto proceeding 

 in any stage from the deposit in the primary 

 ballot-box in the State up to the counting of 

 the votes which declares a President elected, 

 or the failure to elect, upon which the States 

 resume their control through their delegates 

 in the lower House of Congress upon the basis 

 of State equality? The substituted election 

 must come to an end by the 4th of March ; 

 and whoever introduces judicial quo warranto 

 anywhere in the transaction, introduces a pro- 

 cess of retardation, of baffling, of obscuring, 

 of defrauding, of defeating, the election, and 

 gives to the Senate, by mere delay, the present 

 filling of the presidency with an acting officer, 

 and compels a new election. That much for 

 delay. Now, it is an absolutely novel proposi- 

 tion, that judicial power can put its little finger 

 into the political transaction of choosing any- 

 body to an elective office. 



" The bringing into office a President, bring- 

 ing into office a Governor, bringing into office 

 any of the necessary agents of the frame and 

 structure of the State, without which in pres- 

 ent action it will be enfeebled and may fall, is 

 a political action from beginning to end. It 

 comes to furnish a subject of judicial post hac 

 investigation only after it has been completed. 

 If judges are to intrude, and courts with their 



