The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1877-02-06

HacllOn ol tic election, Congress, the tw
houses and President Of the Senate canno
entertain that subject Of proof, that III
process must go on OF the counting, ant
il a disqualified elector has passed III
observation OF the voters in the State
passed the observation Of any sentiue
or guards that may have been provide,
in law, for excluding from actual elec
tion or for the annulllng Of an apparent
right. ltthiS disqualification should b.
made 10 appear when these are al
over and past and the vote stands on Ii,
presentation and authorization Of III,
constitution, which ia the certificate o
the electors themselves, and on the ac
Congress, il must stand interchangeable
and unimpeaChable there.
This tribunal can not receive evidence
in addition TO the certificates, of the
nature Of that which il offered; that il
evidence that goes beyond the States
record Of It's election, which has been
certified by the Governor "a resulting III
the appointment Of these electors. This
tribunal proposes to inquire, us inter
purtes and US matter Of right, which Of
the two competitors was really elected on
an honest and searching investigation. II
undertakes an Office that is judicial, and
powers for its exercise are attempted 10 be
invoked in favor Of those who support
that view by necessity Of the exercise
OF an imputed power requiring adequate
mCans. What are adequate means? AIDE.
quate means for that investigation in
that nature oi right and inquiry are
plenary. There are no means indicial
that are adequate for that inquiry that
are not plenary, and no plenAry judicial
powers can he communicated under our
Constitution by Congress, to say Moth
ing Of minor powers that are Judicial in
their nature except TO tribunals that are
court tribunals, that are inferior to the
Supreme Court, that are filled by Judges
appointed by the President and confirm
cd by the Senate. Will any lawyer, expert
or inexpert, mention topic or method
Of judicaturc, Of jurisprudence that in.
wolves the possession OF larger means Of
reach and more complete control Of pow
ers and methods than the trial OF quo
warranto for an oilice-that is to search
an election. But not only is it beyond
the powers Of Congress to transfer the
powers OF this law 10 this Commission,
the powers OF court OF dispensary
reach and efficacy, but oil the lap of u
quo warranto TO try the title of an Office.
He would find subject in regard to
which the Constitution had intCrposcd
an insurmountable barrier to Considera-
ton OF court like this. The quo war
ranto is matter and an action OF
common law. II involves Us matter Of
right the introduction OF jury into its
methods. No case Of contested election
was ever tried under the sense OF the
states use of proper tribunal without a
jury, but the provision now, is that in
every action Of certain amount OF dig.
nifty, the right Of n trial by u jury shall
exist and a verdict shall never be ex-
amined except by the rules Of common
law. Now can il be said that il the Ju-
dicial power here, and the Judicial pow
er originating with Congress, with the
authority to make courts, is the source
Of this authority. 1t is claimed that these
are impediments that cannot he surmount.
ed. | find in the act of 1877, no
such purpose, in arrangement with the
power, rs to make this court under the
constitution. ! find no appointment OF
these judges to this court under the pow.
crs OF the constitution. / find no means
for writs and their endorsements, nor
for tile methods of trial that must be.
long TO the discussion OF quo warranto
Now | understand that the prefer.
enti of this proof lays out as
the end and the limit oil your
inquiry and of your duties and your
powers, that OF a judicial investigation
upon quo warranto. Ii you are made u
superior Canvassing Board to determine
whether Governor Stearns' certificate
to the effect that the electors were up.
pointed is valid, you are nothing hut a
Returning Board surmounting final
Returning Board, to sec whether their
returns Justify that certificate, that at
once you find that 1t does and that the
defacto title and possession is complete,
and that nothing but jurisdiction that
consists Of defacto title and possession
can begin, or can find the case for begin
ming the consideration OF the question of
right and this quo warranto suit. II it
becomes subject OF evidence, tue mat
ter OF evidence that declares absolutely
on the petition Of Tilden electors, that
Hayes electors are in the possession Of
the faculty OF that office, and what not,
and are exercising it, and then asking
that aninquiry may then proceed in due
course of law, bringing them in only by
process on the 18th OF December, long
after the vote, to inquire whether that
possession and hatexerCise us n matter Of
right between them and the Hayes cleo.
tors is or il not according to law and
truth. We have the Governors certii.
cate and he is the very man that passed
for the Stale on that question, which fur
nishes the right TO meet and act; that
this is the list OF men that were appoint
ed. These certificates under the State law
form no part Of the return TO the Presi-
dent Of the Senate, but whom the same
governor executes under the Federal law
the same duty under the same evidence;
we have the certificate without the pro.
duction Of the antecedent one; now what
are We to gather in respect to the stage
ofthis transaction OF, deposit OF the Feder-
al vote for President by the qualified
electors, it is their own vote and they are
not delegates to make the vote according
to the instructions oil their State; they are
not deputized to perform the will Of any
body; they are voters who exercise free
choice and authority to vote or refrain
from voting; of course neglecting duty
and to vote for whom they please, and
from the moment their vote is sent
forward to the seat OF government no
power in the State can touch it, arrest il,
reverse il, corrupt it, rctract it. Moth.
ing ia to be done except count it, and
count it as it was deposited. These
electors lat the present election 500 citi-
zens in number) are, by the constitution
made for them, dependent on the action
OF the State. II the State does not act,
there are no qualified electors. II the
State does act, whatever ia the be all and
the end all Of the States action up to the
time the vote is cast, is the be all and the
end all of the qualification OF the elector.
He is then qualified elector, dcpositing
his vote for a purpose, and that vote
il to be counted when votes are collected.
Now, it is an absolute novelty unknown
IN the States-unknown in the nation
that judicial inquiries can be interposed
q