Bradford opinion. [volume] (Bradford, Vt.) 1874-1881, 1877-02-17

the Federal government could invalidate the
return, or IN other words, reject o vote on IL
own motion, without the consent Of the State
The second proposition was altogether differ
ont II Is that State itself may undertake
proceedings to invalidate the certificate OF the
governor, After a State of its own will, has
impeached tho governors certificate, the Fed
cral government may go behind IT, This no
claimed lad been done in the case Of Florida,
where tho State had done everything In hei
power to overturn tho Hayes certificate, and
has made II the duty OF the commission TO com.
plete that work. Mr.. Merrick claimed that the
power OF counting votes, granted by the Con-
stitution carries the power to determine what
arc votes and that this determination IL the
first duty of the commission.
Charles OConor made an offer 10 produce
evidence before the commission but this was
objected to by Mr.. Evarts.
! Judge Matthews In his remarks reviewed tho
series of acts by which electors are appointed,
asserting that the final declaration the return
| ing board IL in the completion Of the appoint
ment. That appointment completed, cannot be
set aside, except in the interval of time between
the final act OF appointment and the day on
which, under the law, the electors perform
authority Of the State over the electoral vote
closes, lie said, when the electors have voted.
Whatever il done with the votes after that time
is done in accordance with tho Federal Consti'
tuition and Federal law. In respect 10 counting
the votes tho question is not who shall count
them but how they shall BIO counted. The
commission had a certain discrimination, but
it must be careful not to undertake judicial
examination such as il required in trying writ
of quo rd,rdnto. which involves going to the
very bottom and asccrtaining the number Of
legal votes cast. II the court attempted to sift
the facts concerning the States submitted to
them to the very bottom, how long n time
ia hat Ia;
power was not conferred upon Congress. The
only question for the commission to determine
was, who were the de .facto electors IN Florida
on the sixth day of last December.
Mr.. Stoughton spoke for half an hour follow
ing Mr.. Matthews, and declared that the Florida
returning board was the final authority estab-
lished by the Legislature of Florida to declare
who were the electors, and the tribunal had no
power to go behind tho appointment by the
State as declared by the provisions of State law.
The commission was appointed to count cleo
toral votes, and not to count the votes by which
electors were elected.
Mr.. Evarts made n lengthy argument, the
substance of which was az follows: The only
evidence for the commission to consider is that
which goes to the basis of fact and record on
which the governors certificate is founded, the
decision Of fhe State canvassers. Beyond this
it cannot go. for if this boundary of final de-
terminative State action be passed. there is no
limit to the investigation until it is ascertaincd
how every man voted; if the governors certiii-
cate is forgery, or if il certitiesto falsehood
the commission can go back of it to the fact to
be certified that fact is the finding of the law
full canvassing authority the States own re-
cord of the result of its election is conclusive !;
there could exist no adequate power to 60 be-
yond it that would not of necessity BIO judicial
in its nature, and no plenary judicial powers
have been conferred by law upon any tribunal
s,,fn. thn
commission is not court, and has no power to
adopt methods of trial for determining the
rights of individuals; quo icdrrdntO proceed
ing involves a trial by jury, and the common
law interposes barrier to the commission
assuming to go into such an issue as to the al
legged inelisibility Of Humphries, one of the
Florida electors that has been looked into by
the State canvassing board, which has en-
amined him under oath and found him to be
qualified there is no act of Congress for as
pertaining whether an clector is qualified or
not; Congress cannot entertain questions Of
proof if a disqualified electop passes the OBJ
servation of the voters and the guards OF the
State law, his vote must stand unchalenge-
able ; if the certificate should show that the
electors were senators or representatives in
Congress, their votes couldbe rejected, because
no element of eXtraneous proof would be
needed, but the disqualification would be
matter of ocular and personal knowledge; the
instituting of quo ra,fu'a0 proceedings i'll
State court while duly appointed electors are
performing their duties cannot affect the
legality of their action no power can touch,
arrest OF reverse their vote after it is sealed up
and sent forward The bottom of the system
of electing q President is that the whole bust
ness shall go forward without delay and tho
office be filled at the appointed time If every
step in the process can be hlndered by judicial
proceedings, the sovereignty of the people
Ina Inv II nf
and there will be 10 resort but that which the
children of Israel had-to pray for king.
Mr. Chas. O'Conor followed Mr.. Evarts, in
substance as follows:
Each house of Congress has full power to in
vestigate the facts as to what was the actual
vote of Florida it may institute any inquiry
necessary to ascertain what the result of the
election was; the House of Representatives is
the sole judge Of whether President has been
elected, and the Senate of whether Vice
President has been chosen the commission is
possessed of all the power ill the matter invest
cd i'll Congress, and may so as far in its inqui-
.ies rs it thinks proper to get Mt the truth to
by lack of time is to set up the argument of
to screen fraud, an argument
which, if valid here, would be equally valid to
prevent courts Of justice from acting in quo
cases. the commission can fix
he limits to the inquiry, extending
,nds of justice there is no legal or
barrier to its powers in
his direction. 1t is proposed to prove by
evidence that the Florida cavassing board did
not act within its authority; that unless Presi-
lential electors be held to be State officers the
board had no right to deal with the returns at
III, and the only evidence of their election is
he county canvassers' returns that if it BIO
Omitted that they are State officers. then I'M I
Ter the Florida law the boards action is SUBJ
ect to correction by the courts of the State, +
nd the quo ard1vanto proceedings annulled its
uthority: therefore the time arrived when the .
ction of the Florida electors could take effect
heir lack of title was ascertained and their I'M I
awful performance could not be carried for
Yard after its invahdity is established. He |
losed by saying that there was not person
4 this country, with the faculty of blushing,
tho could look an honest man in the face and I
ny that the Hayes electors were fairly chosen
1 Florida.
Following the remarks made by the gentle
len on both sides was 4 secret session of the
commission. The following i. copy of the .
linutc on the official record Of the commission
On motion Of Mr. Justice Miller, ordered
hat no evidence will be received or considered
Y the commission which was not submitted to
ae joint convention of the two houses by the .
resident of the Senate with the different GER
ticates, except such as relates to the eligibility
I l.. q. humphreys, one of the electors.
The vote was as follows Yeas-Bradlev, Ed
lunds, Frelinghuysen, Garfield. Hoar, Miller
Torton and Strong-9. Nays-Abbott, Bayard
liford, Field, Hunton, Payne and Thurman
Z.
On motion of Mr. Abbott ReSolred, That in .
ne case of Florida this commission will receive
he evidence relating to the eligibility of Fred
rick G. Humphreys one of the persons named
, Certificate r,un,ler rlectuI. Yeas
bbott, Bayard, Bradley, Clifford, Field, Hun
III. Payne and Thurman-S. Nays-Edmunds,
Garfield, Hoar. Miller. Morton
nd Strong7.
The secretary of The commission was instruct
4 to inform the counsel on the respective sides
nat the commission was prepared to hear ar
ument on the question of the eligibility Of
frederick c. Humphreys as an elector.
Mr.. Humphreys il one of the Republican
ectors, and the question raised as to the eligi-
llity is that he was at the date of his election
United States shipping commissioner, which
alleged to be such an Office of trust and profit
= to disqualify him from acting as elector, bnt
hch office. it Is asserted by the Republicans,
G resigned before the election.
The committee by their decision have before
ZEN in the Florida case three sets of papers to
,nsider. namely: First, the certificate of the
Iayes electors second. til of the 1ildon
ectors. and third. the paper containing the
r. h 81. 81 in.;1 10,