198 



CONGRESS, UNITED STATES (ELECTORAL COMMISSION). 



officer who has no power but to open them is 

 set aside from the moment he opens the pack- 

 ets, and the duty of exercising the higher 

 function, preliminarily, of inquiring what are 

 the votes, prior to this mere formal act, 

 'counting,' must devolve upon those who 

 must take notice what are the legal votes and 

 act upon the count of them. This no one is 

 authorized to make or to declare unless it be 

 themselves. This implied power is not intro- 

 duced by any forced construction, but from 

 the absolute necessity of the case. And, con- 

 sequently, we claim that the needful powers 

 of preliminary investigation were in the Houses. 

 It cannot fairly be disputed that Congress, by 

 united action, might have constituted some 

 public body to conduct the investigation; and 

 how far they might have gone toward mak- 

 ing the result absolutely obligatory on the 

 Houses themselves respectively, we need not 

 inquire. 



"They did not exercise such a power prior 

 to the election of 1876, and they have not 

 otherwise exercised it subsequently, except by 

 the constitution of this tribunal, and they have 

 reserved to themselves the privilege of estab- 

 lishing a different determination by a concur- 

 rent vote. 



"The competency of each House to ascer- 

 tain the truth is unquestionable. Each has 

 complete powers of investigation ; they can 

 take proof through their committees, or other- 

 wise, as to any matter on which they may be 

 obliged to decide, and, either before or after 

 the opening of all the votes, they can thus in- 

 vestigate, though not, it must be admitted, 

 with the aid of a jury, nor in the precise forms 

 of a judicial proceeding. They can investigate, 

 as political and legislative bodies may, all the 

 facts and circumstances that are necessary to 

 be known in order to enlighten their judg- 

 ment and guide them to a just and righteous 

 decision. 



"Oar construction thus recognizes in those 

 two bodies, on such a contingency as is here 

 presented, full power to do whatever may be 

 needful to the accomplishment of justice. 



" What is the objection to this construction? 

 The whole argument against it resolves itself 

 simply into the argument ab inconvenient^ 

 Those who would seek to grasp a high office 

 by illegal, irregular, and fraudulent means 

 claim that it would be inconvenient to take so 

 much trouble as might become necessary in 

 order to investigate rightly, and rightly to de- 

 termine on proofs, the question of their delin- 

 quency and the falsehood of their claim. This 

 is a common plea among persons who set up a 

 falsely and fraudulently contrived title. When 

 an effort is made to strip them of their pre- 

 tended authority, by demonstrating before a 

 court or other appropriate tribunal the fallacy 

 of their claims, and th&necessity to the ends of 

 justice of having that fallacy declared and their 

 pretensions set aside, they point out the trouble 

 involved in the task. But let us see how 



stands that argument. Let us test it by ordi- 

 nary and familiar principles. 



"It is suggested that it might lead and, if 

 entered upon, must necessarily lead, if the par- 

 ties think fit to an investigation of the per- 

 sonal qualifications of every one among the 

 millions of electors ; and that, if you lay down 

 the rule or adopt the principle that you have 

 a right to investigate at all, you open the door 

 to that inconvenient and boundless sea of liti- 

 gation. The mischief of this, they say, would 

 be so great, that it is better to let injustice 

 triumph, and permit a usurper to enter the ex- 

 ecutive office by the most unholy of avenues 

 that which is paved with falsehood, fraud, and 

 corruption. They say it is better to submit to 

 all that, or any other more enormous evil if a 

 more enormous one can be imagined than to 

 submit to the shocking and monstrous incon- 

 venience that is thus to result from any attempt 

 to inquire into the validity of the election ! 



" There is really nothing in this broadly-pre- 

 sented picture of overwhelming inconvenience. 

 They say, no matter how, we should limit our 

 inquiries to a very narrow range ; for, if you 

 allow any investigation, you will establish the 

 doctrine, you will open the door to intolerably- 

 protracted litigation. This suggestion is not 

 warranted by law or the practice of courts in 

 such investigations. True it is that, in a writ 

 of quo warranto to inquire into the title of an 

 individual to an office, it is competent to inves- 

 tigate all the particulars down to the qualifica- 

 tions of each individual voter, and, on a point 

 of identity similar to that which occurred in 

 the Tichborne case, one trial might take many 

 years. This is presenting a 'raw head and 

 bloody bones,' to frighten this commission and 

 the whole country from its propriety. 



"The answer to all that is as simple as can 

 possibly be imagined. The objection, you per- 

 ceive, applies as much to ordinary writs of quo 

 warranto in reference to ordinary offices as it 

 does to this inquiry if it should take place be- 

 fore Congress. But this argument db incon- 

 xenienti is as fatal to the general procedure of 

 courts of justice in actions of quo warranto as 

 it is to the proceeding here suggested. 



" But, if the learned commission please, the 

 investigation which might be allowed to take 

 place before either House of Congress, or any 

 commission appointed by them, would be gov- 

 erned by the same principles of general juris- 

 prudence which apply to the determination of 

 proceeding by quo warrants ; and one of those 

 principles is, that no man has a right to the writ 

 of quo warranto as of course, or merely because 

 he makes out an apparent title. It has always 

 been a matter of discretion. Numerous cases 

 are cited here for that purpose on the other 

 side. It has always been treated as a matter 

 of discretion in the power of the supreme tribu- 

 nal, which, acting in the name and majesty of 

 the sovereign power, when applied to for a 

 writ of quo warranto, to allow it or not, as un- 

 der all the circumstances maybe thought most 



