CONGRESS, UNITED STATES (ELECTORAL COMMISSION). 



199 



consistent with the public interest and the ends 

 of justice and the convenience of society ; and, 

 by consequence, this expanded inquiry could 

 never take place in the writ of quo warranto ; 

 it never would be allowed ; no court would 

 ever permit the writ to issue without a state- 

 ment of the points intended to be made ; and 

 if it were necessary in allowing the writ, the 

 court would lay their restraint on the party as 

 to what points or questions he might make. 



" So it appears that in all investigations, judi- 

 cial or otherwise, as to the right of a particular 

 individual to hold and exercise a public office, 

 it is in the discretion of the tribunals how far 

 they will go;-and it is in your discretion, as it 

 would be in the discretion of either House of 

 Congress investigating for its own advice and 

 direction as to the election of the President or 

 the Vice-President, to determine whether they 

 would permit any of these intolerably prolix 

 investigations. 



" So much for the argument ab inconvenienti. 

 It has no application. Standing upon the an- 

 cient practices of the law, the authority that 

 might be called upon to institute an investiga- 

 tion would look at the difficulty presented, and 

 say, under the influence of a due regard to the 

 argument ab inconvenient^ ' Thus far you may 

 go ; no farther shall you go.' 



" Now, in reference to the legal question pre- 

 sented as to what powers each house of Con- 

 gress has under existing laws, and what 

 powers consequently you can exercise, we say, 

 as the learned manager from the House said in 

 opening this case, that there is no technical 

 legal limit or barrier, but that you exercise the 

 same high power of the Government which has 

 always been exercised in such questions even 

 in the courts of the common law, to which appli- 

 cation must be made to obtain the writ of quo 

 warranto. You exercise the same discretion, 

 but you can limit the inquiry, when the point 

 arises, within those limits that are prescribed 

 by necessity and convenience. 



"Now, this is our view, stated as fully as it 

 is in my power to state it in the brief time I 

 am permitted to occupy the attention of your 

 honors. We say that there is no limit to the 

 power of investigation for the purpose of reach- 

 ing the ends of justice, except such as a due re- 

 gard for public convenience and the interests of 

 public justice and society at large may impose 

 in the exercise of this discretionary authority. 



" Well, what is our condition, and the con- 

 dition of all cases of this kind ? There is no 

 judicial court of the United States clothed with 

 authority to deal with the premises. We as- 

 sert that, without stopping to cite books and to 

 prove it to you negatively. It seems to be 

 conceded that, if such a power might have 

 been created, it has remained dormant and has 

 not been exercised. And consequently we are 

 told that here we stand, in the second century 

 of this Republic's existence, in such a condition 

 that there is no possible remedy against the 

 most palpable fraud and forgery that could be 



perpetrated, or against any outrageous acts in 

 violation of the rights of the people of the re- 

 spective States and of the whole nation ; that 

 Congress must sit by, blind and silent, and per- 

 mit an alien to be counted into office as Presi- 

 dent of the United States ; they must sit by, 

 and permit a set of votes plainly and palpably 

 fraudulent votes given by individuals not only 

 disqualified for want of having been chosen by 

 the States, but being themselves absolutely dis- 

 qualified by the Constitution from acting in the 

 office or casting the vote and must permit the 

 usurpation contemplated to take place merely 

 because our wise fathers one would think 

 that the compliment was intended as a sar- 

 casm had so chosen to constitute the Govern- 

 ment they created, that injustice, however flagi- 

 tious, might be perpetrated in open day, with- 

 out the possibility of having any remedy or even 

 uttering decorously a complaint." 



WEDNESDAY, February 7, 1877. 



The commission met at ten o'clock A. M. 

 pursuant to adjournment, all the members be- 

 ing present. 



The commission resumed its session for de- 

 liberation on the question pending in the mat- 

 ter of the electoral vote of the State of Florida, 

 with closed doors. 



In the deliberations with closed doors, the 

 question of the admissibility of evidence was 

 fully discussed. 



Mr. Commissioner Morton said : u I believe 

 that the votes contained in Certificate No. 1 

 must be counted, and that the evidence offered 

 to impeach them ought not to be received. 

 The electors therein named were certified by 

 M. L. Stearns, the lawful Governor of the State 

 at the time, and their election by the people 

 was declared in due form of law by the offi- 

 cers of the State expressly authorized by the 

 laws of the State to perform that duty. That 

 a new Governor, a new Legislature, and a new 

 returning board, coming into office after the 

 6th of December, and after the jurisdiction of 

 the State had passed away, with or without 

 the aid of the courts, can recount the vote, or 

 in any way change the result, is a doctrine 

 most dangerous and absurd." 



Mr. Commissioner Thurmim said : " The 

 power of the two Houses to go behind the Gov- 

 ernor's certificates and the decisions of can- 

 vassing boards has been again and again assert- 

 ed by the House and carried into execution. 

 Thus, in 1865, Congress resolved that no votes 

 for presidential electors should be received 

 from the States of Florida, Louisiana, Tennes- 

 see, Mississippi, North Carolina, Virginia, South 

 Carolina, Alabama, Arkansas, Texas, and Geor- 

 gia. In 1873 the votes of the States of Arkan- 

 sas and Louisiana, and certain electoral votes 

 of the State of Georgia, were rejected. But 

 these instances are familiar to the members of 

 the commission, and it is unnecessary to dwell 

 upon them." 



