The Indiana State sentinel. [volume] (Indianapolis) 1868-1895, 1877-02-14
THE TRIBUNALS POWER.
Letter to Judge Holman Discussing the
Subject.
The Ground Taken that Congress Can
Not Re-DelegaIe Its COnstitu-
tiOnal Powers.

The following correspondence between a
gentleman of this city and a well known
Indiana representative in congress bears its
own explanation. Mr.. McCarty's letter will
be read with much interest by many whose
minds are not wholly at rest on the disputed
question OF the delegation by congress of its
constitutional powers to somewhat novel
tribunal:
WASHINGTON, ID. c., jan p, 1877.
MY DEAR JUDGE:-Please accept my thanks
for your letter. You present the presidential
question and the powers of congress and OF
clearness. had Incorporated your letter in
some remarks had designed making on the
report of the committee as to the rights and
powers of the house, but the bill agreed upon
by the joint committee, which you have seen,
Is likely TO absorb finally all interest. What
do you say to this bill? Can congress delegate
democrats is for the bill as the best that can
be done. How does it strike you? Yours very
truly, w. $. HOLMAN.
BRooKvILLE, Ind, Feb. 3, 1877.
Hon. VIM. :. HOLMAN:
DEAR SIR-In reply to your question whether
congress can create tribunal TO determine
that congress can not abdicate its peculiar
powers, nor can ii ignore its duties or refuse TO
perform them. and where specific duties
triotism, etc, the power is not the subject of
re-delegation. 1t is not like the powers remit
ted by legislative bodies TO municipal corpora
uons, as these are constituted by the corpo-
rators, nor the reference OF matters by
courts TO master in chancery, but even
the acts OF these Subordinates are founded on
the power and authority of that constituting
them. So congress, either house, may use
instruments (committeesl to ascertain or de-
terInlne data Tor It's enlightenment or action,
but the final action must have the sanction of
congress. In this case L personify the consti-
tuition and treat itas the donor and congress as
the donee OF the power, and so also are the quail
fled electors of the states the dOnees OF the
power TO confer title to the offices OF president
and eec vice r5 president de through college
1cehOlders and as this duty Of giving title TO
these offices may shift to congress, il may be
called shifting contingent power.
Test IL by the analogies between il and a
power OF attorney to convey title to land
and one TO convey title to office.
land gives no po%er TO t 70 do f so
power 10 the qualified voters gives none to dis
qualified voters to confer Office and a title can
not be deduced through the agency of the lat
ter. so If a has power to appoint attorneys
under him to convey, but is forbidden TO select
ID, the latter can not make the title. So In
come through him, as the title must be de-
duced from the constitution, as principal in
conformity to the power. AS these qualifica-
tions are made essential to the title it does not
vest if the coupled conditions are absent.
IL would be but solemn farce to have the
senate and house present if they have no du-
ties or powers. You might as well have the
same number of geese ii the president of the
senate has sole power over the matter. AS the
senate and house are TO elect in case of de-
cessity determine the question OF election or
non-electiOn. 1t is a compound question
Of law and fact, and my OpIn on is
than court of exclusive jurisdiction has to
refuse to entertain suit and remit the sutton
to bogus tribunal for the redress that ii is
bound To afford. If the action of the commit
tee is ratified by congress, ii then, and then
only, becomes legal, and not in virtue of its
own action under the act. 1 admit that the
flnn
agencies ii may use to enlighten il either as to
law or facts, or what aids il may bring to its
use are proper; but If it is the tribunal or
power designated by the constitution for this
purpose, IL alone can legally do it..
The "presence" used in the constitution does
not mean as mere figure heads, but poten-
tial presence, to determine the title to the
office and guard the rights and efiforce the will
of the people. This is the involved implica-
ton, otherwise congress might be made the
mere "panders" to "A scheme of villiany.
Let me ask you if a court were setting upon
a disputed title, as you are to do in this case,
and and a deed were offered which purports,
on its face, to convey the title and the party to
avoid the effect offers proof that it was forged,
the agent usurped his agency, or it was void
by reason of any other defect. could
force to the deed? If SO the
court is superior to the law it processes to
administer, and which avoids the deed. Is
the title to office less sacred, that the action OF
congress should be more restricted
not absolve yourselves from constitutional
duty. The constitution dominates you and
the title alike Congress represents states,
and the people and the trainers of our consti-
tuition deposited this power in congress, and
il can not shift the deposit. The qualities i'm
piled in the trustee are Judicial skill, wisdom,
integrity and patriotism, and the constitu-
ton supposed congress the fit agency because
of these qualities and its relations TO state and
people.
l do not think prominence enough has been
given to the constitution of Louisiana, which
guarantees to each citizen over twenty-one
the elective franchise. The legislature can
not directly or by the returning board or other
means destroy this right. The law conflicts
with the constitution and is void. The right
is in determinate persons and lives in and with
the constitution, and no crimes of third per-
sons can destroy IL.
/ have no leisure for further elaboration
now. Very respectfully yours,
WILLIAM NJ MCCARTY.