Clarksville weekly chronicle. (Clarksville, Tenn.) 1873-1890, 1877-02-17
MIR. EVARTs.
washington Union.

We 90 not WlSn TO accuse Mr. EVart
of any want of fairness or candor il
his citation of authorities We thinl
we can justly tax him with Ignorance
or carelessness. We suggested yester
day the obvious inapplicability of th,
Maryland case-the first one cited b.
him in the course Of his argument OF
Monday, and the one upon which h,
seemed to lay the greatest stress-tC
! support the proposition that the two
houses and the Electoral Commission o
as the organ aud instrument of the
houses, lacked the necessary and plen.
ary powers for judicial examination
and scrutiny of the electoral votes. A
further examination of the case itself
as reported in the forty-third volume
OF the Maryland Reports, referred to
by Mr.. Evarts, shows that he mistook
or misstated the facts of the case as
completely as he shot wide of the mark
in his misapplication of the decision of
the court.
That we may not be accused our
selves of doing injustice to Mr.. Evarts
we quote from the Record that portion
of his speech entire which refers to the
case in question:
II may ask your attention, in con-
nectIon with the topic that l last
discussed, and in pertinent relation to
the present, to the case Of Groome VS..
Gwynne, in 43 Maryland Reports, 572,
especially at page GA. This case
shows that this argument that a duty
attributed by law or the Constitution
must carry to itself, in the funotionary
charged with its exercise, all the powers
necessary, upon the ground that the
duty must involve the powers, finds no
place in our Jurisprudence; the argu-
ment is the other way. If the func-
tionary, ifthe commission has not been
clothed with the necessary faculties,
then the duty is not accorded or, the
means of its exercise not being fur
nished, it cannot be discharged. There
the Governor had, by the State Con-
stitutiOn, the power 10 determine a
contest for the elective Office Of
Attorney General of the State of
Maryland. The Governor, finding by
his own inspection of the Constitution
that he lacked the means of carrying
out the scrutiny that must decide, held
that he could not exercise it and he
would not exercise it unless compelled
by judicial authority. The Court of
Appeals, on an application for a man
ddD1Us to compel the Governor TO give
the certificate to the candidate appear
ing to be elected by the canvass, held
that he was vested by the Constitution
with an authority to decide the contest,
but that the laws of Maryland had not
executed the Constitution by furnish
ing him with powers to perform the
duty assigned to him, aud that the
must go against him to
compel him to deliver the certificate
to the candidate that, on the fraudulent
election, was returned as having the /
plurality of votes. Thus the prelimi-
nary contest before the Governor that |
might have been effectual to redress |
the frauds ofthe election was defeated .
for want of necessary legislation. The |
contest could only be had under the |
judicial powers of the State lodged in |
the courts, and in the shape Of quo |
,0drTdRtO on suit against the indicted /
candidate that the Governor might or
would have decided not to be entitled |
to take the office"
The facts of he case toere ,just hc re-
rerse of 1Chat Mr.. E'rarts states. The /
Constitution ofthe State making it the /
duty of the Governor to decide upon
the election and qualifications of the
Attorney-General, the Governor, be-
fore issuing a commission TO Mr.. |
Gwynne, who was returned as elected 1
1T the November election, 1875, was
served with notice that Mr.. Gwynne's
election would be contested on the
ground of election frauds in Baltimore
,ity. After hearing argument as to the
effect of the Constitutional provision
he Governor gave his decision in
writing TO the effect that while he
iound Mr.. Gwynne eligible and quail
led, and according to the returns
hat is upon the face Of the returns
elected, he should proceed to an in
luiry and investigation into the facts
IF the election by means of testimony
to the returns "ltnlcSs re-
trained by the courts" In the mean
While he would withhold Mr.. Gwynne's
unless ordered to issue it
~ nednddDaUs Upon this invitation
nd declaration of the Governors in
ention to 60 behind the returns, appli-
alton was made to one Of the Circuit
Jourts of the State for a maGndaBaus,
which was granted by pro fornsG or
Ter, and the question carried to the
Iourt of Appeals. The court affirmed
he right of the petitioner to the writ,
md decided that the Constitutional
which made the Governor
he Judge Of the contested election for
he Office of Attorney General was not
and that the power
,ested in the Governor could not be
for want of the proper legis-
alton to enable the Governor to COM
nand the attendance Of witnesses,
ompel the production of testimony,
&c. The court, however, based its de-
here Mr.. Evarts missed
he whole point of the case-upon the
round that the Governor being an e;r-
cutiUe officer did not possess, as q mat
er of course, the powers necessary for
he prosecution Of judicial inquiry,
,ut needed to be clothed with them by
he Legislature. That no such en-
or difficulty Inexperienced
" the Legislature itself in the exer-
Use of precisely similar or parallel
,owers is not only plainly deducible
rom the language and reasoning Of
he court in this case, but was express
y decided by the same court two years
,efore in another contested election
ase-that of Brooke VS.. Widdicombe,
eported in the thirty ninth volume of
Maryland reports. That was contest
or the Office of clerk of one of the
ourts of the State. OF such contests
he House of Delegates and not the
Governor is made the judge by the
The question was wheth-
r, pending such contest, nadRddmus
Tould lie to compel the issuing Of q
commission to the candidate who had
he majority on the face of the returns.
rhe court decided the question in the
using language which we
ommend to Mr.. Evarts's attention.
after saying that the jurisdiction Of the
House of Delegates and Of the court !
7as in nc sense concurrent the court
.eclaTes that to the House of Dele-
ates is given 1
the exclusive power and jurisdiction
0 90 behind ue Teta,rns, TO examine INTO {
he qualifications Of vOters, 10 purge the
lalLot-b0r, and recount The UOtes; sub |
ects orer lchich the courts haze no jatTSs- I
hctioa. Our powers and jurisdiction {
re confined simply to the question of {
he legal right of the appellee to the
flee after having been duly returned