The Portland daily press., 1877-09-14

tunity would be afforded for bribery and cor
ruption. This the trainers of the Constitution
intended to prevent, and this was made more
etfectual by another provision, requiring the
electors to transmit their votes sealed,
directed to the President OF the Senate,
whose DUTY 1t was to retain the same until
opened IN the presence of the Senate and
House OF Representatives, when such votes
were to be counted.
The power of the State to appoint electors
being vested exclusively in the Legislature.
and not in the people of the several States,
and the only constitutional power of Congress
over the subject being to fix the day of their
appointment and of giving their votes, it fol-
lows that no matter by what mode, or subject
to what conditions, the State Legislature
shall direct their appointment, its determina-
ton is absolutely final. Thus, if the Legis-
iature OF Massachusetts should-as has been
done, we believe, in South Carolina-choose
electors by the votes of its own members, or
authorize the Justices of its Supreme Court
to appoint them, or should direct that body
consisting OF three or more canvassing officers
should examine votes for electors, and certify
which were lawful and who were elected,
such certificate, or that OF the Supreme Court,
or of the proper certifying officer of the Legs-
lature in the cases supposed, would be decis-
I've evidence OF the appointment OF electors in
the manner directed by the Legislature; and
would be final and conclusive upon Congress,
or any other tribunal empowered to count
and declare the electoral vote. Nor would
the effect sS Of this Be sig saapgsa Law q
ing the votes, to reject such as in their judg-
ment were fraudulently cast, or those cast in
town or district where, by reason of fraud,
violence, intimidation or murder, fair elecs
tion has not been held. The power of a Leg
islature to confer such authority cannot be
doubted; and the choice of electors, uninfiu-
enced by fraud, violence, intimidation or MUIR
der, seems an appropriate and just method of
secruing their appointment. . .
Attention has already been called to the d.
verse opinions entertained upon the subject
of the power to count the electoral vote. In
devolvmg this power upon the Commission,
no limitations could be agreed upon. The
act providing that it should proceed to consid-
er the certificates, votes, and papers submit
ted, "with the same powers, If any, noW
possessed for that purpose by the two
Houses acting separately or together, and by
majority of votes decide whether any and
what votes from such State are the
votes provided for by the Constitution Of
the United States, and how many and
what persons were duly appointed electors in
such State; and may therein take into view
such petitions, depostions, and other papers,
If any, as shall by the Constitution and now
existing law be competent and pertinent in
such consideration" No specified iurisdic-
| ton was, by the terms of the Act, conferred
upon the Commission. 1t was empowered to
count. the electoral vote in the cases and sub
ject to the conditions specified, if power so to
do was possessed by either or both Houses of
Congress but unless one or both might law
| fully exercise it, the Commission could not. -
OF what could 1t take jurisdiction? What
could it do? Only this. Where more
| than one return or paper purporting to be
l the certificate of electoral votes had been
| received by the President of the Senate,
| the Commission was to determine which
contained the true and lawful electoral vote
l of the State from which such returns or GER
| ti6cates had been received. Its could exer-
| else no authority lin violation of fhe Consti-
/ tuition, and hence could not interrupt or
| change the manner of appointing electors by
| the State. 1t could only ascertain and de-
clare who had been chosen in the manner
prescribed by its Legislature.
Take, by way of Illustration, the case of
| Louisiana. Its Legislature had directed that
| five persons should be the Returning Officers
i for all elections in the state, majority of
| whom should constitute quorum, and have
l that power. They were to meet in New Or
| leans, receive from the Commissioners Of
| Election the statements by them made of the
votes cast at the various polls throughout the
n
cate, one copy of which they were to file
| with the Secretary of State. and OF the other
| to make public proclamation by printing in
| the official journal and other newspapers, in
| which they were to declare the names of all
| persons and officers voted for, the number of
| votes for each person, and the names of per-
| sons duly and lawfully elected. The returns
Of elections thus made aud promulgated were
| declared to be in evidence in all courts of JUS
tce and before all civil officers of 1.-THE right of
| any person named therein to hold and erer-
| else the office to lolich by such return he toGs
/ declared elected.
The power of the Legislature to pass such
1 law cannot be doubted. Its validity and
| the conclusive effect. due to the action of the
| Returning Board thus constituted have been
passed upon by the Supreme Court OF Lou.
| isiana, the highest judicial tribunal of that
1 State, in the following terms:-
"No statute comforting upon the courts the
l power to try causes of contested elections or
l title to Office authorizes them to revise the
| action of the Returning Board. If we were
| to assume that prerogative, we should have
l to 60 still further, and revise the returns of
| supervisors of elections, examine the rights
of voters to vote; and, in short, the courts
would become in regard to such cases mere
officers for counting, compiling and reporting
| election returns. The Legislature has seen
| proper TO lodge the pOtUer to decide tvh0 has
or tohO has not been elected In tie Returning
| Board"
The question before the Com mission was
| not, had the American people right to elect
| their chief not what was the vote
l for electors at the polls either of Florida or
l Louisiana,-for in both States substantially
| the same Returning Boards existed
| who were appointed electors by those States
| and by the State of Oregon in such man
ner as their Legislatures had directed. A
State acts and speaks through its officers
| duly constituted; and the canvass and dec
| laration by the Returning Boards of Louisi-
| ana and Florida, and by the Secretary Of
| State of Oregon were the acts and declara-
| tions of those States. They could thus, and
| only thus, manifest their will to appoint elect
| ors: and those declared to be such, by Re.
| turning Boards or Officers having exclusive
power to do so, were appointed by those
States in the manner directed by their Legis-
| latures.
The decision Of the majority of the Com
| mission was throughout harmonious, con-
l sistent, and based upon the constitutional
| requirement-never for moment overlooked
| or disregarded-of ascertaining who by each
| State had been appointed its electors in such
| manner as the Legisture thereof had directed.
| This could be attained only by learning to
| whom such Legislature had confided the
power and the duty of making and declaring
l their appointment Neither in Louisiana
nor in Florida could this be determined but
| by the action of the Returning Boards, nor
| in Oregon but by the action of the Secretary
| of State. the duty of ascertaining, count
ing, and declaring the electoral vote had been
confded to the Commission, but not the
| power or duty of revising or reversing the
| action of State tribunals. These were su-
| preme, acting under and bound to obey the
| laws of the States creating them, to which
| neither the Commission nor Congress was In
/ any manner subject. y
With his usual positiveness Judge Black
asserts that in Florida the statute creating
| the Returning Board gave it only ministerial
| powers, and no authority to reject votes actu-
| ally cast for Iany cause whatever; and that
the Supreme Court of that State had so de-
| cided. He also averred with equal assurance
that the Returning Board of Louisiana acted
| under ia void statute, and without the least
| authority to do what it performed; and this
| in the face of decision of the highest court
of that State. Party passion and profess
ional zeal, coupled with professional defeat,
inspire reckless statements. That of Judge
NJ ~. Al. M