The sun. [volume] (New York [N.Y.]) 1833-1916, 1877-02-09
The Electoral Commission-Som Addi-
tional Views of Constitutional Law.


The Electoral Commission-Somc Addi-
tional Views of Constitutional Law.
1t appears to US that the protracted dis
cussion at Washington as to the powers of
the Electoral Commission, in which so much
of learning, of argument, and Of talent, has
been expended, might all have been saved
by a profound and impartial consideration
of the underlying inquiry, whether the Com
mission possesses any power at all.
What is this Commisslon2
Is it a Legislature? Certainly not. No
one contends that it possesses one atom Of
legislative authority.
Does it possess judicial powers2 If SO, 1t
Is court. The Constitution provides that
tho Judicial power of tho United States
shall be vested in one Supreme Court, and in
such inferior courts as the Congress may
from time to time ordain and establish
This Commission is not the Supreme Court,
although it sits in the Supreme Court Room,
and is composed, in part, of majority of
the Judges Of the Supreme Court.
II it is II court at ALL it is all inferior court.
Is it a court2 Some Of the counsel address
the Commission as a court, and contend that
It IL court.
II we may Judge from the official report OF
the proceedings Of the Commission, 1t is
sort OF conglomeratc, in which the members
preserve the distinctive capacities belonging
to them elsewhere: We have n Presiding
Justice four Mr.. Justices, five Senators, and
five Representatives, spoken of, respectively,
as such, throughout the official report Of
the proceedings.
If this tribunal is n court. then 1t Is uncon-
etituuonal for two reasons: FIRST, the Con
stitution provides that tho Judges, both
OF the Supreme and Inferior Courts, shall
hold their Offices during good behavior"
and the members of this Commission do not
hold their Offices by such tenure. Secondly,
the Constitution requires that all judicial
officers shall be bound by oath or affirmation
TO support" the Constitution Of the United
States. Such is not the oath prescribed,
by the bill, TO lie taken by the members
of this Commission, and the only oath which
has been taken 10y them. Latitudlnarians in
the construction Of the Constitution, and in
the construction Of oaths, may contend that
the same rs that required by the Constltu-
tlon. Carrying IT. n step further, some
other oath might be substituted for this one
But 1t is well settled that when the law pre-
scribcs a certain oath, that particular oath
must be taken, and swearing TO something
else does not answer the purpose.
This Commission, then Is neither Il legis
lativc nor judicial body. 1t is non
lcscript. 1t Is body for which we find NJ
place nor room under our system OF govern
ment. 1t is without form and void. 1t is &
another 1t is nothing
We maintain, as proposition OF constitu
tlonal law, that the powers conferred by the
Constitution upon the Senate Of the UnitcC
States cannot be transferred by the Senate
to any other body whatever. They constl
tutc an official trust in a particular brancl
Of tho Government, which must be compose
Of members above certain age, will
prescribed qualifications, elected by TN
Legislatures, or, under certain clrcum
stances, appointed b. the Executives, Of tn
Ia T.. b.r.pix.
Itself Of these powers, nor can it bcstov
them upon others. They cannot be ycste
by the Senate, in whole or In part in any 0
all of the Judges Of the Supreme Court.
Tho same is true Of the House Of Repre-
sentatiycs-its powers cannot be delegated
In reply it may be said that the House fire
quenty empowers a committee TO act Tina
Is true; but this is merely tho House itsol
acting through a committee Of it5 owl
members, The House could not dclcgat
any Of its powers 10 foreign body, to
committee, for instance composed Of Judge
Of the Supreme Court,
What powers, then, does this Commisslo
posses? No powers under the Constitu
ton, for the Constitution does not conten
plate the cXlstcnco Of such body; Il
powers under the law, for the lazy creatin
1t Is clearly unconstitutional.
There is just one power which this trbuni
possesses: that is the power to adjourn sn
IL, The sooner that Is done the better. Tn