The New Orleans daily Democrat. [volume] (New Orleans, La.) 1877-1880, 1878-05-05
THE ELECTORAL COMMISSION.
Prominent Republican who Thinks
that Hayes Title has Never Been
Passed on Judicialiy.
[WasbiDgton Post. ]

The following clear and pointed opinions
are parts Of an interview with Gen Francis
Barlow, Of New York, prominent Repub-
ican and lawyer, who was specially appoint
ed by President Grant as one of the Kepub
ican visiting statesmen" to Florida. Gen.
Barlow is a gentleman OF the highest charac-
ter, closely related to George W. Curtis, of
Hnper's Weekly, and was formerly Attorney
General Of New York:
zone thing is certainly perfectly clear, and
that is, that the Electoral Commission neUer
pnsaed ON the question, whether or not Hayes
election was Fraudulent. We often hear it
lid that Mr. Hayes title has been passed on
by court, and that this ought to be the end
of it, both in it's legal and moral aspects.
Even where a question is decided by a
competent court, after full investigation and
upon its merits, it sometimes happens that
evidence is afterWard discovered Tor perhaps
existed at the time, but was not sufficiently
attended to on the trial. which makes 1t
against good conscience for a man to retain
property which has been awarded to him,
though his legdt title may be perfect. For
example, an estate is devised by will, and the
will admitted to probate The legal title be-
comes perfect. But suppose it is afterward
discovered that the instrument is a forgery
and that the witnesses have sworn falsely,
will it be pretended that the devisee is, In
sound morals, justified in retaining the es
| tate, even though q competent court had de-
cided that it is his 2 Ordinarily, however the
decision of court upon conflicting evidence
4
science, as well as give a legal title,
"But it seems clear (and it certainly is so
under the theory on which the majority Of
the Electoral Commission proceeded, that
! Congress has only a ministerial and no judi-
cinl power in the premises.
The President of the Senate
shall open the certificates, and the vote shall
| then be counted.
"This is mere ministerial duty, a mere
matter of figures. Certainly the Electoral
Commission had only the powers of Congress
las just quoted even if it had any powers.
The only possible ground on which the con
sttutionality Of the commission can be sus-
| tanned is that the powers of Congress, with
which it (the commission) was invested, were
purely ministerial, since judicial powers can
not be delegated. IT, then, the law creating
the commission was constitutional, and II its
own theory that of the majority was cor
rect, as think it was, then the only power or
duty which Congress or the commission had
and the only power which has been exercised
| in the premises, is the mere counting OF
votes not an investigation of their legality
! But the error so commonly prevalent In
this case is to consider the decision of the
Electoral Commission to be that of a court, or
as having gone upon the merits Of the case.
THAT body by its majority, expressly de-
cided that it could not try, the case on it's
merits, and IL did not. 1t held that it could
only take the returns as they were made Its
action was as purely ministerial as that of
our board of supervisors acting as can
vassers.
at seems idle, then, to talk about the
merits Of Hayes title having been passed
upon by a competent tribunal.
| Nothing Of the kind has been done, and
| the action of the commission cannot be
pleaded either in law or in morals, as having
done anything more than Ito use the words OF
the constitution counted the votes, and de-
| cded that it could not go into the merits.
''lt is true that in some cases in which there
! were two sets of returns las in the Florida
casei they decide that one set Of them were
the true and lawful returns but this was
only deciding that the latter were the returns
made by the legally established Returning
Board Of the State, not that the returns them
selves were correct and free from fraud.
THE point is that the constitution OF the
United States does not provide for any judi
cial inquiry into the title of the President
and none such has been had, and hence what
has taken place is no bar to an action under
the proposed law.
CAS- to the power Of Congress to pass a Law
authorizing the title Of Federal officers to bt
tried in proper action, it seems to me that il
is clear under the clause which provides that
the judicial power of the United States shall
extend to all cases in tar and equity arising
under this cO1rstitahiOn
Whether an officer provided for in the con
stitution is righGuuy IN office would seem tx
be emphatically a question arising under the
! constitution -