, 1877-01-06

petcnt to apply to tic proper Federal
cnu,t for mandatory or!icr compelling
true, md genuine retnr.s nf lrsaily-aprolnir,l
Electors; or II he sta!l llasc rcrviveI them, Is
It not cntnrettnt to sltc nut restraining order
compelling him to reject r'lch as tnny te shown
not t., he tho gcnnfnc returns of legal Electoral
~ either cse, wo,ll not the lo,r Of inquiry bt
thrown nprn sufficiently wide 10 reach hack md
fcr1ltlnfzc the antreeacnt facts md Influences
injecting the validity anl legality OF their an.
qn!ry by each House Of Congress- touching tho
elections, returns, and qualifications Of It's own
members givrs Z Jurisdiction eycr such antecc-
TINT the Inquiry would be subject not 10
lhduc1ecs OF personal ambition, or the uncol-
trollctt discretion Of partisan rcsentmcpts, bat
10 tho strict ana orderly rules Of judicial tnyes
WActhcr It, 10 competent to 70 behind The
judicial decision Of a Ennyaseing Donr.l, made
IN the due course Of appointing Electors In the
astle for error Of Judgment alonc, Or whether It
can be itnrcarhcfl for corruption or fraud ot the
part uf tho Board; whether nj, apparent major
itv can bc avoided for fraud upon tho ballot
| tion; md whether Tho nets Of such ti.-
qualified, Electors liaso the legal effect
and ysli,lfty Of All oi!lver dc facto,
laws cHactcsl by the casting yoto Of q Repro
| sentative rs Senator dc fncto, though mt such
lie jurc; whether t!lo certificates Of tho one or
the other Of twe rival COLLEGES shall be received
encc Of tic Senate and llolsse OF Representa-
tivcs, Or either Of them, at the counting Of tho
| Electoral vote be obligatory. OF discretionary;
wraWa u os If etsst VII III not naS ne
authority to make, md inval1i1atc, the rnslnt;
and whether, rs tho power OF thu Hottsc
to clloose q President depends on the
result o. Tho count, its non-attcn,lance
| or Withdrawal, If its prcscnco bc csacn-
tinl, will not place It IN revolutionary
attitude, md defeat tho condition upon which
| alonc It Gun entertain Jurisdiction to choose n
questions arising unt1cr tho Consultation Of mo-
| Incntuus national concern, nnt which arc re-
culfarly a'aptc.1 to judicial inquiry md deter.
mEnattun on application to tic proper court, at
The proper time, for an order commanding the
prcsidcnt Of thc Senate to proceed with or ab-
stain from tho exercise Of sonc part Of its min
istetfat duty.
the existing provisions oi tho Constitution, MS
Aul convinced It is 10 amendment OF TINT instr,1-
mcnt is necessary in order to vest in
tho Supreme Court, BY appeal, ali, and
assert or exercise over the subject. To leave
the final md nutiorntive declsIol,uf SUCH mighty
questions TO the President Of tho Senate Is
!r.int,ht witi, danger. TO remit It to either or
bbth OF the Houses only nugMcnts tic peril by
nggravatlng It's causes and intenslfyinE tho III
iurpees producing It. Tho Constitution hna
therefore merely withheld from them this deli
cate and dangerous powcr.
The proposition to constitute the supreme
Judiciary, tho uranlest bulwark and coslserya+
Tor Of purity, Justice, liberty, md human rights
the world ever eaR, polftirl Returning Board,
Is onc tho contemplation Of which ILLS tho mind
with alnrm. Submitting to It questions
arising nu,er tic Constitution, IN The DE-.
cisfDn OF which It's diterctfon is guided
by the light and controlled by the authority nf
reason, precedent, anh law, Is bt,t 10 Invoke
lis functions fit ttcIr Legitimate sphcrc: The
authoritative mandate Of It's solemn finding ana
Judgment ltos In It q moral Ernndostr. Hut tho
dsgradation of TINT august tribunal to the
ofllce Of n political mnelltne will. discretion
uncontrolled by other than rolltlenl precedets
and partisan mntiVes, docs not present for It's
future that dignity, authority, aud respect
Without im,,airlng thcsc anl In the ordinary
coursc 81 judicial proceeding, as herein eug..
gestcd, a!l the objects proposed to bo secured
By. constitutional amendment arc now attain
Constitution to tho uncuntrolled sovereignty Ut
the atntcs, can be Tatlo tho subject Of inquiry
anu authoritative tleeis'Cn hr the supreme judi
cla5ry under existing provlslons.
power TO tnteffrrc with or control tic count nj
tho Electoral vote; that It cannot assert Juris-
dct!on of tho subject by any net Of Legislation,
or otherwise, md thu. the celebrated twenty
at absolute nn'iity an, for the reasons stated,
profoundly persuaded TINT tue Prcsl1cHt Of tho
srnato cni. exercise nnno other than tho limited
ministerial functions Indicated. And, although
ain not unaware that tread on debatabic
ground, my conviction is equally clear TINT thu
Jurisdiction Of The courts, u slggestcdt is un-
questionable nnt anlplu for tic emergency now
existing.
lnpEreIlcu0 1t probable, however. that 0n
judicial proceedings agalnst tso President ot tho
snnAta It would f'e held by tho Court That
many Of the alleged cal!acs of existing complaint
have hcen renewed, or that tl,p time within
Wli!c they might have been rctietiru Inns t.oIlc
~. NotlIiuyi Is better settled ttnii thnt the
appointment To ~ oire u 4!sgun'lHcd perso',
constitates iT !iia tMe &c iasso lncnMhsnt Hereof
nht'' SaGatcd w lnucf1lent OF olsteft feslEna-
ti0,I or III some osher prnper tnoac, aud that thu
Official nets Of such iMrt,l'Ibant, ti'no IN
tIle eSofc1se VI his oiilvo uh'tcr color ol
regular appointment Previous 10 yntcs III rceig-
fatsol tfc valid nnl b'nt!hg This question
was 1ud!tinl!y settled ~ sputh Garoliia tlAny
years aso ~ dllc case OF INC appointment 'ot
silpfcno ludlcial otecr III direct 'rnntraycntton
OF tue state Constitution. u VIII hardly bo
claimed that thu elest!o of United btntct Set,-
Ator ny the cflsth11 vote III disqualified person,