The New York herald., 1877-02-06

State OF New York as to tho eligibility Of
q Judge tsay OF the cour. Of Appeals, n,ry
might be opened in regard 10 400 600 persons which
but one-haf the number OF electors; and IN pre-
sentng this head aud bloody bones which Is 10
frighton this court and the whole country from us
propriey, might suppose that, IN investigating tne
right Of each OF those 400 goo electors woaa ass - :.
100000 years. which would be very long period lor
any court OF justice to be engaged IN trying Single
case. (laughter) Now, the answer to all tnat Is as as
simple be imagined The objection you
perceive applies much the ordinary writs OF quo
regard to ordinary officers as II does 70
this inquiry II 1t should place before Congress LOT
no court or set OF courts could conduct, within
tho compass OF any human lifetime, the investigation
which might be necessary in determining the clam
of a single officer Thcrefore this argumcntum ad
inconvcnentam IS fatal TO tho general proceeuuio
OF courts OF justice IN actions OF quo warranto as ~ Is
TO the proceeding here suggested But, the learned
commission please the investigation that may oe
allowed to take place before either house Congress-
before 0py commission appointed by them, wouii
be governed by the same principles OF general
Jurisprudence that apply TO the doctrine OF proceeding
by quo warranto and OF those principles Is that no
man has right to the writ OF quo warranto rs Oh
course, because he shows AN apparent tte IL mas
always been matter OF discretion Numerous cases
are cited here tho other side to show that It has
been always treated as matter of discretion ~ ~ III
the power OF the supreme tribunal acting IN the name
and majesty Of tho people, when applied 10 LOT
writ OF quo warranto to allow 1t or
not, under all tho circumstances may
be thought consistent with the pub
lie Interest," the ends OF justice and the
convenience of society," and by consequence this ex-
anded inquiry can never take pace on wr gopd aI1
permit the writ To ISSUE and never does so WIN
out a statement OF the points intended to be made
And, II IL necessary in allowing tho writ, Inc
court would lay restraint on tue party as to what
point in question he must MAKE SO that, ia All ihvcs
legations judicial otherwise, as to The right OF
particular individual TO hoid or exercise "a
public office, IL Is in the discretion of the
tribunals to-day how far they Will CO. and
It is in your discretion IL would be In the discretion
OF either House Congress- acting Tor It's own advice
and direction. as TO the President aud wee President
10 determine whether would consent 10 permit an
intolcrablc investigation OF that description So much
lor tho argimentum al inconrenientidn II has no
application There never would be found necessity
for it, standing the ancient practices OF the law,
the authority which might be called upon to institute
an Investigation would look at the difficulty presented
and say under tho influence of due regard TO the
argumentum ad inccnUenientdm:-"rhusi lar you may
so; no further shall you co.
THE POWERS
Now in regard the legal question presented, rs to
what powers each house OF Congress had under exist
ing laws and what powers consequently this Commits
can exercise, we say, as the learned manager
OF the House stated opening this case, that
there technical legal limit or barrier TO it, but
that you exercise the high power OF the govern
mcnt that has always been exercised IN such ques-
tions, in the courts OF common law 10
which application is made TO obtain the writ
of quo warranto; you exercise the same dis
creton, and you limit the inquiry (when the point
ariscs) within those limits that are prescribed by ne
ccssitv and convenience This Is our view, stated as
fully Is in power to state II in the brief time
/ am permitted to occupy the attention OF your
honors We say that there Is no limit to the power OF
investigation for the purpose oi reaching the ends Oh
Justice, except such due regard Tor pubic conven-
interests
at large may impose IN Inc inc exercise OF
that discretionary authority. What Is our con-
dtion aud the condition OF all cases OF this kindY
There IS no judicial in the United States clothed
with authority to deal with the premises We assert
that without stopping to ctc books and to prove it to
YOU negatively, IL to be conceded that II such
d power might have been created it has renamed
dormant has been exercised, and consequently
we are told that here stand the second century
of this republcs existence, in such condition that
there Is possible remedy against the most paipabe
fraud forgery that can be perpctrated or against
In lf ha al
people Of tho respective States and OF the
whole Union We told that there Is no remedy;
snat Congress SIT by bndly aud silently and per-
init an alien TO be counted into ONCE as PRESIDENT OF
The United States; must sit by and permit Il set OF
votes plainly and papaoly lrauuuient lgven oy nai-
chosen by the citizens but being themselves absolutely
disqualified by the constitution from acting
ia the Office from casting the vote) TO
be counted, and must permit the usurpation
contemplated take place merely because
Dur wise fathers would think that the compliment
was intended as a sarcasm) had chosen 10 constitute
the government which they creaied that injustice,
however iagtious might be perpetrateo I'd open day
even uttering decorousy complaint. This, we
humbly submit cannot be the constitution and the
law Reason iorbids H. All acts, however solemn.
however sacred, from whatever quarter coming, by
whatever body perpetrated are liable to review
in some manner, In some Judicial or other
tribunal so that fraud and ialsehood may shrink
abashed and doeated and may tail In the attempt 10
tramplc on the right II seems TO De virtually con-
ceded here that the Governors certificate Is not
elusive. have not time TO say much about that IL
required by the constitution 1t is only required
by an OF Congress. The Governor cannot bo COM
PEELED TO give it. Many circumstances may prevent
his giving II, and he may have given II under
circumstances OF plainly fagtious falsehood
without any election. without any proceeding
had 10 sanction II. He may have given his certificate
10 his four little boys and constituted them an electo
raj college, which they gave, pursuant to
his bidding and by force OF his certificate would be-
come absolutely conclusive and binding on all the an
thortes OF the United States who had any power TO
act IN the premises. submit TO Your Honors
that that IS not so, and beg you to
matter) TO the citation OF Armstead's case in Mr..
Green's briet rs Peters. 694), where the Supreme
Court, speaking by the voice OF Judge Story, pro-
uouuced all transactions OF every description, however
solemn, mpeachao for fraud and capable oil being re-
yersed In the OF the State OF Michigan against
the Phoenix Bank (33d New York Reports, page 27),
your Honors will lind that the most solemn judgment
of any Court may be overhauled and reviewed. and be
shown TO have been procured by trck, deception
falsehood, and may be completely reversed and
defeated. The inquiry, then, is
How far we TO go in this cases The Florida
laws, which you have been referred, show that II
may be necessary TO go farther land we have as
serted that IT will not be necessary to 20 urther) Than
to make a collection OF the unlawful extra jurisdic
tional acts Of the Canvassng Board. You may not
when you como to look at this law, which Is contained
IN little document placed before you consider that
there any such sanctity attending tho action OF this
State Board supposed The law Is that
Iany such ,the county returns shall be shown
the is unable determine the vote of
sinde such return in their declaration
aud the SECRETARY of state shall preserve and e in h
and papers have been before the Board of Can
which will be the certificate OF their actor
rejecting those returns.
The law itself provides for and contemplates an in
vestigation OF the action of the Board Of State Can
vassers. Turning hack TO the law in relation TO th'
Board OF County Canvassers you may find that neither
OF these bodies has any power whatever except simply
to compute and return the vote received. Such Il
the w the primary Board OF Canvassers, ant
the second Board Of Canvassers and the las
md ultimate Board OF Canvassers and these
very limited powers they seem to have exercised
only In regard TO single county. They
rejected some little fragments OF three counties
but did not exercise the power OF rejecting the whole
OF these returns which the only power that thoy
possessed. la regard TO the one single county they
seem TO have acted by some possibility within
the limits OF their power and authority 1t might be
supposed that they dd so, but we propose TO show
that they did We will show 1t by
Their own certihcate, whicn the Jaw compeis
them fill aud To place along with
she counts winch they made, and which from short
trief and simple inquiry viii demonstrate the mon
strogity OF the deed which seek ~ set aside W.
clain TINT The lnnrranio is ndmissihle Ion vii