The sun. [volume] (New York [N.Y.]) 1833-1916, 1877-01-03

what II cannot do In form " cannot do in sub
| stance: what 1t cannot do directly II cannot do
| Indirectly. Tue cnoice which Legislature Is
| authorized to make for state, In the mode of
| appointing Presidential electors, is limited to
moro selection between certain known forms NJ
| action, recognized IN the practice OF popular
gov, rnmont, and consistent with the nature OF
! pOpnlnr govern nont. IL = a choice Of modes,
| but must not change or destroy the essential
| character of the thing itself. 1t IL subject TO
| the Condition that the state shall appoint"
the Pres dental electors. TIE State. that Is the
| political community known IT, our Jurisprudence
| and constitutional law by that name, must
"appoiut." and In doing so it must act hy and
through its known aud riGhtful ORGANS. st the
| time this provision Of the Federal Constitution
| was adopted, 1t was contemplated that the Legis
| llture OF a state possessing all the governmental
state Constitution. or transferred to the Govern
ment OF the Union !ght itself choose the
| nrst generally prlctcsd bv the States. The
STATE Legislature at tn time was regarded rs
| the most natural and the legitimate organ Of the
| state. me power TO choose Presidential cleo
tors might nroperly be conferred upon the pco-
Throughout the State choosing III the eiectofs;
| or they might be chosen by tho people Of the
| one elcctor. These were methods con.onant
| with the PRINCIPLES OF or system 81 govern
erl, sad that the State did, in fact, " appoint"
1t is historically certain that these different
| modes were In the CONTEMPLATION of the conven-
| ton which formed the Constitution. Experi-
encing some difculiv however. IN imposing
| thu. duty upon the States BY any one uniform
| system, It devolved upon the Legislatures Of
each state the authority to choose, from among
these methods. one for the exercise OF that
| power w,ich 1t granted IN declaring that leach
state shall point"
While the Legislature Of state may provide
that Prc-idcntiil electors shall he appointed by
an election oi the people. 1t cannot provide that
that election srall not DC reallty--tbat IL shall
b. q shan-and that the actual power of deter
mining thcchoice shall be Invested in u packed
comulttee, whether 1t he called "A " returning
board" or 10y any other name.
Neither can 1t invest II hoard Of canynssers
with authority which. by the uriurtuIes nd
practice NJ our ihrisprudonce, ana the policy of
our elective system IRE not iiriy incident to the
function Of ascertainimg the vote of the people.
THIS seems to me t. b. the obvious. the wise in
states and Of Its laws ANY other doctrine will
ODrn the way to abuses, frauds. and usur Ons,
Tao moment we depart from strict cunstruc-
ton II grants OF power la dcrogdtipn Of the III
toaruy md emoiency Of the clecliyo systen, We
shall be able 10 lind no rIle thut will protect the
rignts ot the people. We shall tempt transient
mnj1r;ies To seek to prolong their power Uv
tatntcring with the machinery OF elections. and
the elsie 81. most convenient ana most cncctuh
method for such purpose t. by che cOntrivance
Oi returning boards. which shall bc packed and
equipped with powers hitherto unknown 70 our
laws and practically suoversive Of the will Of the
people.
In The particular case OF louisiana other
equally grave lee ilities are believed - exist.
TIE ruwers vested N the Returning Board arc
Inconsistent with the provision In tnc Constitu-
ton VI that State which guarantees the elective
irau-As" 10 voters, nj also with the provision
whirn cnnfers the juricai power upon tine
court. II l. probable that the powers of this
|
Presidential electors tnat tin board Itself
not constituted In accordance vita the law un-
der which II wis created aud finally, that u
cpnuiu"n wlinput wni'h me Nr' lrnin- Board
could nor ~ Jurisdiction in the cnses wnsrs n
assumed 10 rel 'c' votes Of whole districts. was
not rom 1ncd with. Thcre Is every reason t. be
hs,e tna, ths authority exercised 9s !hat ke-
st,uuoA II the United states. ana also to the
Constitution aad laws Of Louisiana.
In this state uf tue law. THAT keturnine Board.
according To pihlic statements of conceded
fActs, ~ manip lations OF the returns, pave
eicciors u ab ,it acoo to a m jSrity ror another
SCI Of about 40J1. which would br equivalent t.
achanse Of over 5000 votes IN the State " New
In Florida we have seen board OF State can
vasSers. sOlcmnly hdjudged by the highest court
In the state 10 possess none bur ministerial
powers. assume the authority to rever e the
choice 81 elector. ~ shown on the face of the
returns m1ue 70, The officers who conducted the
al, ctiOns and received tue votes ana t. do this
ca triuunhl having iur-u ictiOn Ia SUI h matte ~
and vested WIKI the right of nnal judgment.
In south Carolina we nave seen the board ~
State canvfsscrs fdbficatinz canvass m IKE
disubrAirrce ani cOutempt Of the supreme
Court hsviar jurisdicton and the right Of nnal
judgment, we nave sven Federal soluicry take
possession II the C,pito Of tie state. aud cor
poral AZ the door dctcrmininr who Were the
elect ui the prouic and VINO were To he permit
ted 20 represent them As legislltors. Nutwilh-
standing come of these acts have been dis.
avuweI by the Federal executive. no marx OF
instrumentation has been put upru rhe authOrs
OF me outr ~, the officer ~ command goes
ETH unrehnked. and wheu the Returning Board
wcrr couiiLi'iel 80 prison tor contempt nY Ia"
highest court m the state II judge Of thc United
state bisirict Court - sent down 10 South Caro-
lins. and. without jurisdiction in the case
rrant- 4 writ Of nabe.s corpus. and discharges
the offenders. These proceedings are the more
eXlr ordinary and alarming when W. consider
mat such y0l,tlons OF law ana of right nave
been rcsprtei - to uvertufn elections, all the
officers conducting which were Of the same
political plrA with the candidates In whose
iuVur these acts have been committed; that the
elections were held under tue surveillance Of
troops of the United States. without any CON
y sututou warrant Tor their presence. and that
the lunlFltl decisions tn set eu m
not he susr-c ID OF any partisan hilS, for they
were ren4ered bnih IN Florids and south Caro-
linz by Judges al Of wuom were of the sumo
political plrty win the Returning Board.
~ .esa noes Of the n lit1r. unvar !, IVA
, been cpmmltted ~ hhgrtnt violation OF the
Coz stituuon aud laws They were not prpvole ed
10y dpme-llc vlo'ence tnty we're not invited III
s'itutionpl, bv the Legislature OF me state; and
trc, were continued nii"t the clecti N was over
ti' oanvi~-ine tond. Ihcr tendency WA 70
oNefaWr the Vol 7 under Tue pretcn-c Of keep
selves unlawful, ana To deliver dishonest OH iials
, from e uatdrAl ,fu-r IF respon-lON.t' ma the
natura. urndiiy in regard 10 TIE consequences
ri their acts. wnich are prOVidential limitations
a. "."n's cpucrpi "a oI the crimes upon which
the, may venture
While these Things were going on In the South
muer Of tue Cabinet Al shington was
acfing A. Chnirinhn OF a partisan National Com
m'ttee. an with the GO Ieration Of some OF ms
iiiuAgUe> IN tue Libinet, counselii.g ai.5 sVe-
tematioIb stiiauiating these desperate lnoa-
The result, waich these Proceedings seen, de
! signed To accomplish cannot ne secured Mif1o ut
one further step la tne process OF uspfpntIOu.
rue I tbricittO OF ,lectcral votes amounts to
! nothing unless they can DC counted by the tri-
! ounal whOrt constitutional duty n j. TO verify
| and tGturu.lc tie them. Iuat mex Jraoe ueces-
-itN hhs giNVu hirtt 20 n new ucNcc t1r counting
3 the votes not OulN unknown 10 the Constitution
uut in cnnil go with the constitution htthertO
a WaSr accepted AMI WI.n the inyIi Idle prhc-
u tie" ANA precedent-. Inat device y for tue
o. President IF the Senate TO usurp the power ut
To- Determining what NO.cs shal be COun.ed an 4
! what suau upi Toe counted, AMI to exercise that
/. power h disregard of tine orders II the two
4 housVs. II would not De Vredi lie that 30 mon
struu- 81 nm ~ thi- could ne seriously tod
Il | If leIdiu. Senators mai not puNiirly avOwrt it,
d Nothln- could ne moro nhnOrrcnt to the spirit
h OF our svHtcn OF government ttdn sue one
b. man power. Inc Iraaident Of the Senate is
elected ~ The sen and they IN turn are
"a elected 10y the state Legislators. He J., tnere-
20 fore, thrsc removes from the people. II such II
e power were 10 have been vested IN "A single man
e a depository would have tecH ch sen ~, so ial
- rem lvcu from popul AZ accuunta 1litY. Hat the
pcoile ol this country viii noYor vest such
r. power IN any one man, however elected. lnuy
II Viii never tOns' NJ to new con .tru"tln OF the
\ Constitution aud LAWS That bears -uch fruit
= lhey Val stand firmly IN the aucFut ways, AMI
= ln-i4f "a { ttc electoral votes in ms rur I+nc,
p email be- counted ~ they LtNe alwlN been
A. a .fan MT b.