The New York herald., 1877-01-24

the President Of the Senate is the custodian OF the
certificates. and II directed 10 open them, u may ba
implied thai ne has power and thea
from thai implied power may be implied that he has
the lower determine what snali be counted, ana
then. from the unpcatoa grated the inipilcstion
that he has power TO declare the effect of tue count
aud what ,s counted This view certainly deserves
consideration II has found no this chamber
Now u isa view against which. u ! mistake not,
every member In tins body on both sides, save Two.
stands on his oath recorded. repeat, u has found no
volce IN this debate. but accept respectfully as
u suggestion to which | should listen because be.
yond THESE walls tho thought has been expressed by
those whose worss and reflections are not lightly 10
be passed by. The doctrine oi Implication. Ms II
stands MECHANICALLY IN The law may thus be stalled
Wherever power 20 do athing permission rs I'm
piled to use the 'acsns 10 dei
Q, sning granted Is implied inferred be granted
Life is full OF illustrations OF this species OF ntend
mcnt 4 spot OF grounu Is granted IN the midst OF
great ncd II is Implied that the grantee has granted
TO hln also rsn. TO pass over NE intervening groand
to get 10 hts. When the conatituton prvvidrs that
Congress may co,n money, may borrow money. may
establish post offices and post roads. the power Is i'm
Piled to usc the ways and means anu accordingly 10
establish mints TO establish banks, to acquire rca
estate the States where post Offices may be- built
That tho doctrine OF implication as declared by tho
old supreme Court with Marshall at It's head IN Nc
Cuiioch VS. Maryland. Watson the City OF Charles
and IN many noted cases since.
When The constitution authorizes tho President. on
the call OF the Governor Or Legislature TO send troops,
npou the happen,ny oi "a certain contins seucy II I'M
pnes tho power ia him to inquire and determine
whether that contingency has arisen so SAID Tho
Supreme Court in the case of Mott vs Martin. WHAT
"
granted power may be inferred but tho terminus and
boundaries OF the doctrine OF implication are
tain AZ anything IN law can be
Mr. rresdcnt. when tho act when / expressly au.
thorlz d has been performed. when everything auxii
AIRY that has been done, there Is nn end of mp
cation and The cnd OF the whoo mater IL Is the end
vi law }, Is reason, and IN reason an impi At
power must be subordinate 10 aud involved
something beyond expressly authorized. Express
power never impl,c' power 10 du .niuS whatever
alter the thing authorized has been completed En-
press authority TO do an act u one spec.cs does
work by Implication authority 10 do an act ot another
species. The authorny 10 do ministerial act does
Imply power 10 act Judc,ay Authority 10 act ~ tho
custodian oi papers does not imply powor 10
ranscsnden acts OF sovereignty Tor supreme and ait
mate pubic determination a clerk OF "a court or tho
chic justice uf court Is made by Tho recipient
papcrs Il s directed that they shall be under
seal him anu that he shalt rotan them until day
whom is IN session aud carry them court
and open them and open all OF them rhon
sa nsssoa q, 0ntsns ,"
iacls found whereof they arc cvidcntml" or
thc proceedings bc disapprovcd or approved or et-
tcctuuted." Would II occur 10 any that such
that the Clerk OF the Court alone
Chief Justice aone were 10 proceed to pass upon Tho
papers to lind the facts Of when they wero cvidcn
hal, or to approve or disapprover
Lot me change tho illustration. Suppose the con-
tents of the packet IN tho instance suggested
summonscs or warrants, ana tho shcrii made tho
custodian, and tho iaw Declared that no
sSoud Sssn wTs psn sas sas o%
should We know who was 10 serve them Tho appro-
pratencss oi tho sheriff would suggcs. him, but II
would only suggest him. That IL not the reason
would that tho Shcrin to do It because tho
law declares that tho Sncrin shal serve all such
unless Is Interested party and then tho law
clarcs somebody else shall do IT, But suppose iu this
instance oi warrants or wrts, the statute declared
sand tho validity Of tho writ shall then be passed
upon;" although the custodian be the shcrin suoud
We suppose that the Sheriff was TO do ~ We should
know that the court was to do It. Whyy Because Il
JUDICIAL and the law declares that judicial functions
pertain to the court
Mr.. President. apply that rule to tho before
We know tho nature OF tho possible inquiries involved
the occasion. Committees havo g0no tar and wido
10 conduc. them. My distinguished friend from W,s-
consln Mr. HOwc) has panied US by his absenco Tor
weeks because depulcd by the Senate IN u distant
Stale Day utter day iabOri0usly he has been
ductiDE them. shall have OCCASION to show, II do
weary tho patience OF tho senatc that tho trainers
Of the constitution wcll knew aud Rravely pondcrcd
tho problems which would arise Tor solution. NY
senate 10 10 equipped for settling disputed
questions OF iact is SO endowed with facii.ics
and intondment point to him alone US tho tribunal
The person having tho largest number Of vo,es-of
valid legal votes be Il majority, Is 70 be the rrcsi-
dent The question Is Who shall MI tho Office VI Pres
identY The constitution has named, us | said. ut
least i've IN which, although majority
be gwen for u candidate he shall not MI tho ollcc OF
rresdcnt--unlcss hc be native born citizen; no psr-
shal ali tho Office Of President unless ho has at
'' no person shall nii tho office Of Pres. Pres,
ident unless he has been fourteen years resident Of
chosen by votes OF electors who voted also for
another person tho state tor Vice President
been impcached ny tho grand inquest Of the county,
has bccn branded by the votes OF two-thirds VI this
body nnu immutaOly usquaiiucd
POWERS ExERcIsED AND ny WHOM
These questions may arise Higher questions may
arise. Hus the President of the Senate tho power 10
send for persons and papers, to swsar Witnesses to
that S.S $
body who ialnllarly. IN tho two hom,sphorcs,
had welded such pcwcrs Yes. sir. tho British Par.
election, qualifications and returns OF Oiilcula Tue
State Psiaurcs this Continent had done tho salno
thing. II Ind been customary Tor tho lords and
mons assemble in JOINT concrcncc and their rules
OF sixteen hundred and odd forget tho exact year
stand believe. yet SO. after our const uton was
| House to meet together 10 rocevo tho Mossaae
or speech OF the President OF Tho Cnited states.
The two houses Of Sta.e Legislatures assembled to-
gether they do to-day famllIarly not only elect
regents Of not only TO choose Senators In
Congress- but TO opened, Canvass ascertain,
10 determine tho count OF and the results Of
elections The honorable Senator from OHIO tMr.
ThurmAn) sits before me. and that reminds me OF a
the. Ny recollection IL that oarIy 1902 tho state
OF ohio had IN its fundamental law the very words OF
our constitution: "Ihc presiding oliccr shall open
the certificates the presence OF tho two houses aud
| tho votes shall then be counted" Is that Ity
MIR. THURMAX-Prttty nearly.
| sir. COxKiiNu-In substance; and ask the Senator
from Ohio to me II am wrong IN saying that
tcnancc OF that constitution II was the settled and
contested understanding mat the ptesiding officer
houses ot the Legislature together count
or canvass the votes. Am r.ght IN tnuty
! Mr. TmuRMAx--That Is right ms TO tho Governor.
MIR. EDMuxDs--Tlo Chief Magistrate.
| Mr. CoxKrIxu--Tho Cher Magistrate Of tho State;
and the senator reminds mo thai was unprecisc IA
stating the officers to whom this provision nppied
Indeed supposed II To apply 10 all State officer
ask, then, whether the men who employed tho words
the shall then counted, kuow OF tribunal
body having powers and faculties adequate 10 tho
conduct 0f such a procccdlngy
THE TRUK COUNT.
! II has bcon said that the nero addition Of
units therefore, that no aid u necessary except
mon honesty and common sense do MT understand
! the word 10 be so employed Ia the constitution A
may bo Of different kinds. To my fingers
Uf papers Is ministerial acL To count bank notes
which thero may be countorfcits nnd separate tho
truo from the false Is than u ministerial act
IL requires judgment IL Involves faculty. To "opcn
all tho certificates is ministerial act. As my hon.
orable friend from Vermont (Mr. Edmundsl suggests,
as porter might open o bale o goods, II u
purely ministerial act. But to count tho