The New York herald., 1876-11-16


uona. because each House OF Congress Is made the
judge oi the quancanoas elcctons aud returns OF s
own members, ana that they t,he two horsesl
should 20 back and ascertain what the
popular vote actually @as, Notwithstanding
the action OF the Returning Board in throwing out cer-
tain counties and parts OF countics The committee
sustained my view Of the case but made no elaborate
report. They recommended the unsrating OF Clarke
which doEc by the unanimous vote OF republican
House, n we except the vote Of Clarke himself the
unseaied member. In acting as counsel Ia
the Florida case OF Nibiack VS.. Wall, and
the South Carolina OF Bowen vs. Dc Large, both
being contested election cases. discovered that tho
statutes OF the States named all the same as 10
seated by counting all the votes although his ma
Jorty was less than sixty. In the OF Bowen aud
DE Large, neither was Seated on account OF frauds on
CoRREsroxDgxr-Ihcn, Judge, you regard those re-
turning boards as unconstitutional contrvancesY
Judge PAscHAL--So far as the election oil members
OF Congress are concerned do SO regard them, and
for tLcreason have given; but as regards the cec-
tion OF electors for President and Vice tncy
have constitutional applicability, because the consT
tuition simply declares that states shall IN hcir own
way choose electors for President aud Vice Presidents
and neither that any staute OF the United States
provides for contested elections in the case OF electors
"hc question then Is simply one oil power whether
legislature may provide that the returning board or
any other body OF officers, may exercise Jurisdiction
tho returns Of the county officers VINO canvass
the ballots and Tor any reason or no roasop reject
part lhereof My opinion Is that states have
tho power TO say who Of Its citizens
shall vote for electors, and TO create any board VINO
may ascertain that vote according tho rules pre-
scribcd by local statutes.
CoRREsroSpgsr-what 10 your opinion as to the
power OF the two houses OF Congress 10 reject re-
turnsy
JUDGE PAscHAL-On that particular point am not
prepared to express an opinion. Az any rate they
have exercised the power before.
Here tho Judge gavo number OF precedents notu-
bly, those counting the last electoral vote when the
votes OF Georgia, Louisiana and Arkansas were re-
jecied.
CoRREspoSpESr-whatd do you think of The Twenty
second JOINT rule as II formerly existedf
Judge PAscHAL-It was Revolutionary In its ten
Gency. In the carly history OF the country DOtn
houses met simply TO witness the count and not TO OBJ
ject 10 counting the vote OF ANY particular state or
States.
CoRnEsroSDYSr-H is argued by somo that under
the constitution the presiding officer OF the Senate
Is commanded TO open the VOTE the
inference being that he will also count with tho aid
OF telcrs and that he cannot entertain objections
What is your opinion on that pointy
Judge oPAscHAL-Certainly. there Is nothing in the
constitution making his duty TO entertain objections
coRnksrosDxSrmAro YOU ,. apprehens've i Of my
zoa sa1Fs looks dark The Returning r boards ~,i n
OF course exercise their full
powers and throw out votes where intimidation or
ruud is proved 10 have existed before during the
election There is easus omissns here which has not
been provided tor and II other party loses, and u hon.
esty believes II has won II will lead TO trouble have
no doubt OF it. l have found but few revolutionary
once aroused ihcy very determined, and will no
moro submit to imposition than the democrats.
BLACKS vIkws
Judge Jerc Black, 0t Pennsylvania, cx-Attorney
General Of the United States who happens to be 10
town on business with the United States Supreme
Court, was found at the Ebbitt House. He had no
hesitation In giving very democratic opinion OF the
situation.
Judge Black, asked your correspondent, from what
you know OF the circumstances, do you bolieve tho
twenty second JOINT rule Is still operatives
Judge BLAcK-It IL my opinion with reference to
this, or any other OF set OF JOINT or standing rules
that DO roscnded only by the power that made H.
ConRKsroSDESr--rhat is, the joint rules cannot DO
repealed without the concurrence OF both Houscs2
Judge BLAcK--That is about IL.
CoRnEsroSDEST-But when the election certificates
come to be opened can the Senate go behind the
made by the Governor and canvaAsing boards
Of the three disputed Southern statesy
Judge BLAcK-Congress has the power to SEQ that no
fraud or forgery Ia committed IN tho election OF the
President Tho House will see to that.
CoREEsPoxDESr-But has the House voice In pass
Ing upon the counting OF tho votes whom tho consttu-
ton rs silent US TO any such powery
Judge BLAcK-lf the r ght 10 say 'Ycs'' IS given,
tho right TO say No" rs also given. The House. in
being present. has nfecniiay the right to pass upon
the election.
CoRrxsroxpxsr-Notwiths that tho President
OF the nlunc directed TO open the
Judge BLAcK-Ths Senate could not participate IN
any fraud that Mr. Kellogg or Mr.. Patterson might
pcrpctrate Tho people are getting worked up about
this whole thing like barrel Of beer In tho month OF
June The and froth are passing out at tho bung
hole and tho clear liquor s settling down behind
They know that Mr. Tiden has been elected, and that
fact will be clear by and by.
CoRRxsroSDgyT-Arc the electors In Oregon and
Vermont who werc postmas.crs on election day dis
Judge BLAcK-Doubtiess they were; but they don't
help our case Unfortunately tho law in
vacancies occurring In tho electoral colleges
EX-GOVERNOR STANTON.
Ex-Governor r. + stanton, ono OF the lawyers prac-
tsng In the Supreme Court was nsked for his opinion
on tho situation He Will bo remembered as ono OF
the counsel IN tho celebrated Kibourn trial for con-
tempt OF the House of representatives. Besides hs
legal ability he has long aud interesting political
record, which Is unstained He preceded Governor
Walker AS acting Governor OF Kansas prior TO which
he was Secretary Of State, and was member Of the
House for yeErs from the State Of Tennessee.
'what do you think OF the present political compli
ttns,.y .nneo bod
II have very little to say indeed, very little can DO
said II seems to DO conceded that tho popular in
na Is in favor OF the democratic electors; but In
those States the returning boards are reported TO have
extraordinary powers and unlimited discretion
IN rejecting from places al which
frauds intimidation alleged 10 have taken place.
There is very serious apprehension, unfortunately
well founded, that injustice VIII be done the
people OF those States by giving tho votes the
d'daes who are not really ecctcd do not soc that
any interference from outside can prevent this result
If the determination e TO effect u IL was bad
idea for eminent and impartial men OF both SIDES
TO DO present and witness the proceedings of
requesting certain gentlemen go these States had
confined himself to mon IN his own party, but had
suggested tne names oi mpara men % 81 oI.n parties
Adams, cxA,torney Generals Hoar and Stanbcrry, the
effect would have been much better. The moral inlu-
encc OF such men might have accomplished some
good, although would DO impossible for them legally
to Interfere 10 and way with tho proceedings
the result OF these proceedings, and the eloc. Of
them upon public feeling Will depend entirely upon
their fairness and mparuahty Now, as 10 the count.
Ing OF the the presence Of the two houses
cordng 10 tho provisions Of the constitution, con-
ceive u be wholly unmportant whether the cole
bratcd twenty second joint rule expired with the
grcss which adopted H. or whether is stl In force
for IL plain that that rule could not have conferred
upon the houses any power not given them by tho
constitution They could MOI assume such power,
by law regularly enacted and approved by the
President, much less by mere joint rule But as.
sumo that the JOINT rule, consructon placed upon
constitution bv tho two houses, u valid
dent, and that they did not assume. Unauthorized
power when they adopted IT, II, then, that rule
valid authorizing either house, by ITS objection TO
exclude the vote OF any State from tho
connt, each house would have the samo
power In the absence OF such joint ruo by virtue Of
It's independent authority under the constitution But
this pswer extends only TO tho exclusion Of tho OF
any state and this TO be tho only authority ex
isting under the constitution and tho preccdonts
which have been established since the foundation of
the government II might possibly result infer
encc from this authority that the two houses would
have The power TO investigate the elections and
determine the integrity or fraudulent character
thereof; but this subject the principles