196 



CONGRESS, UNITED STATES (ELECTORAL COMMISSION). 



themselves, and in which they have chiefly 

 excelled.' 



" With all these elements affording guaran- 

 tees in respect to the result, I think it may be 

 confidently asserted that such result cannot he 

 other than the intelligent judgment of mankind 

 in present and future times will approve. With 

 that assurance, and with a deep sense of my 

 own incapacity to fulfill the part assigned me 

 in arguing the great question presented, but 

 with a conviction that all deficiencies of this 

 kind will be supplemented by the learning and 

 ability of the tribunal, I proceed to lay before 

 your honors what may seem proper to be now 

 said on our part in relation to the issues that 

 have been raised for consideration by the com- 

 mission's resolve, adopted on Saturday. 



" The questions, in short, without repeating 

 details, are expressed by the inquiry, What 

 powers have been vested in this commission 

 for the purpose of enabling its members to 

 guide through its determination the action of 

 the political authorities as to the election of 

 President and Vice-President ? And here let 

 me observe on a mistake which the other side 

 has made in relation to a paper presented to 

 the court on our part on Saturday. It has 

 been construed as in some sense prescribing 

 limits, or giving our view of some limit proper 

 to be assigned, to the power and authority of 

 this commission. This is a mistake. That 

 paper was designed for no such purpose and 

 expresses no such idea. With a view to facil- 

 itate the action of the court, we presented in 

 that paper a statement which we believe to be 

 correct and true in point of fact, showing the 

 very narrow range of inquiry into matters of 

 fact that would actually become necessary. 



"In reference to the question, What ele- 

 ments of inquiry are within the competency of 

 this court? we stand in direct conflict with the 

 other side, and the issue formed between us is 

 this: 



"We maintain, as representing what are 

 called the Tilden electors, that this tribunal has 

 full authority to investigate, by all just and 

 legitimate means of proof, the very fact, and 

 thereby to ascertain what was the electoral 

 vote of Florida. 



" On the other hand, it is claimed that this 

 learned cemmission is greatly trammeled by 

 technical impediments, and has no power ex- 

 cept merely to determine what may be the 

 just inferences from the documents returned 

 to the President of the Senate from the State 

 of Florida. While thus contending, however, 

 the Hayes electors mainly repose themselves 

 on the proposition that they are officers de 

 facto. Admitting, for the sake of argument, 

 that their claim to be electors is without right, 

 and is simply clothed with a false and fabri- 

 cated color of title^the Hayes electors claim, 

 through their counsel, that, inasmuch as they 

 cast their vote while possessed of some docu- 

 ments which gave to them the mere color of a 

 right to perform that duty, the fact that they 



acted upon this color, and did of their own 

 motion or their own personal will, through 

 their own right of selection, cast the votes for 

 Mr. Hayes that are sent here as the vote of 

 Florida, all inquiry is completely precluded, 

 and that it is impossible for any earthly tribu- 

 nal, or any individual, to investigate or to de- 

 clare the invalidity of their claim. 



" This issue thus, I trust, not too narrowly 

 stated raises the question, What are the powers 

 of this commission? I proceed to state our 

 views on the subject. 



" Those powers are distinctly and briefly ex- 

 pressed in the electoral bills under which you 

 are acting that admirable act of legislation, 

 destined, to the immortal honor of those con- 

 cerned in its preparation, to pass into history 

 with your action. The language defining your 

 powers declares that you shall possess 



The same powers, if any, now possessed 



" For the purpose in hand 

 by the two Houses, acting separately or together. 



" You have, then (and this is the test), all the 

 powers of those two Houses which they could 

 possibly exercise under the Constitution and 

 t>y the preexisting statutes, for the purpose of 

 enabling you to determine the inquiries sub- 

 mitted to you. Let us see, then, what powers 

 are possessed by the two Houses, separately or 

 together, in deciding as to the electoral vote 

 upon the facts that exist or that might exist 

 and may be proven. And this calls upon us 

 to say what those powers are, and requires us 

 to answer whether, in relation to the action 

 which has here been called counting, any 

 powers under the laws existing when this elec- 

 toral bill was passed, and which were needful 

 to a proper ascertainment of the vote, were 

 vested in the President of the Senate. 



"Now, that no power of any description 

 deserving the name of a power to investigate 

 and decide resided in the President of the 

 Senate, is most plain from the very words of 

 the Constitution. He is authorized to receive 

 certain packets, and he has no authority what- 

 ever by the Constitution save and except only 

 to present himself to the two Houses of Con- 

 gress, and in their presence to open these 

 packets. The phrase is, 'open the certifi- 

 cates ; ' but this evidently means, open the 

 packets. He has no right to open them at 

 any previous time ; he has no power whatever 

 to investigate what is contained in the packets 

 before thus opening them ; he has no means 

 of taking testimony ; he has no right to judge 

 of anything; and he is positively precluded, 

 not only by the Constitution itself, but by the 

 physical laws of Nature, from knowing what 

 may be within any packet thus received by 

 him until the moment at which he opens that 

 packet in the presence of the two Houses. Of 

 course, the packets which he is thus authorized 

 to open are to present the basis of subsequent 

 action. 



"Nothing further is prescribed to him, and 



