The Portland daily press., 1879-12-23
Another Independent Opinion.
The Chicago Times Denounces the Execu-
tive Usurpation.
[Chicago Times.l

tive Usurpation.
[Chicago Times.l
If the executive may exercise the despotic
Office of personal sovereign by. .decreeing
what persons shall compose the legislative
body, what virtue is there in any form of rep
resentative institutions?
This question is brought practically homo to
every American citizen by the high-handed
outrage that has been committed by the execu-
tive Of the commonwealth of Maine. Usurp-
ing the fundamental right of each legislative
chamber to be the sole and exclusive judge OF
the election and qualifications of its own men,
bers, the executive has assumed to count OUT
sufficient number of the members returned
by his political opponents, and to count in"
sufficient number of his own partisans, to trans
fer the majority in both chambers from the
former to the latter, 1t is claimed that this
has been done by authority OF law. The law
specifies certain technical modes and forms OF
making up the election returns. The returns,
made according to such legal specifications,
are required to be delivered to the Secretary ef
State, subordinate officer of the executive.
The Secretary is to open them in the presence
of the Governor and Council. These function
aries, with the Secretary, constitute tho re
turning board" whose office is to canvass the
returns and ascertain the result. The law
then provides that the executive shall
issue certificates of election to the persons
appearing to have majority of the votes in
the returns, Such certificates are pTimG facie
evidence of the election of the persons to whom
they are issued, and the persons holding them
are supposed to be the only persons capable OF
organizing the legislative chambers, and when
SO organized, the only bodies having the right
to Judge of the election and qualification OF
their own members. 1t is claimed that the ex-
ecutive, in canvassing the returns, may exer-
else the discretionary power of judging wheth-
er the terms and forms of law have been OBJ
served by the election officers and If, in the
Judgment of the executive, they have not been
strictly observed, may throw out such as ap-
pear to be informal Upon this claim it is pre-
tended that the executive of Maine has counted
out his political opponents and counted in his
political friends by authority OF law.
A Republican government is representa-
tive government. Absolute freedom OF the
electoral people to constitute a representative
legisl ature, and of the representative legisla-
ture TO determine all questions that may arise
as to the election and qualifications OF its
own members, are of the vital essence OF Re
publican constitution. If there be in the con-
stitution any other organ or body that may de-
termine the election of representatives, such
other body is master over that assembly which
is the represented body of the people them
selves If the executive possess a discretionary
power to reject the returns of votes given Tor
representatives for alleged informal1ty or up
on any pretense whatever, then 1t ls PLAIN that
the executive has power to dlsfranchlse the
electors, to defeat the will OF the people, and
to substitute his own personal will II the ex-
ecutive, by the name of a returning board, or
any other may thus determine, or in any way
CONTROL the composition OF the legislative, u Is
plain that the executive servant OF the law
NAV prescribe conditions out of his own will to
the makers of the law, and SO, instead OF the
servant of the State, make himself absolute
master of the State, "by authority OF law. III
the executive may determine what persons
have been elected to represent the people, or
may designate those who alone may partlci-
pate in the organization OF their legislative
chambers of course he may compose the legis-
lative according to his own will and make HIM
self in reality the legislative as well as the ex-
ecutive. Precisely this is the way that some
modern despots have coatrived to rule abso-
lutely under the forms OF representative lnstl-
tutions.
ANY system which permits the executive or
any part or organ of the constitution other than
the legislative chambers to exercise any dis
cretion in canvassing the returns of votes given
for representatives of the people, is wholly ir-
reconciable to and eternally at war with the
most vital principle of Republican government.
That principle permits no exercise OF judgment
in any degree upon the election or returns OF
the election of the legislature The legislative
houses are the sole and exclusive judges OF the
election and qualification of their own men,
bers. Their right OF exclusive judgment goes
to every STEP process, form, and act OF the cleo
ton, and excludes wholly all other right or
power OF Judgment thereon. No returning
board can peform any but purely ministerial
office. 1t can only examine and certify the
facts that appear on the face OF the returns.
1t cannot 90 behind the papers before 1t, nor
Judge whether the contents of those papers are
formal or informal, according to law, or not
according to law. That judgment is for the
legislative chambers only-not legislative
chambers composed Of persons counted IN
by the Judgment of the executive upon the le-
gality or illegality of election returns, but OF
the persons who appear on the face OF the re-
turns to have received the greater number Oh
votes Though every vote given for them may
have been illegally given, and though every
return of such votes may appear to be informal
and technically contrary to law, these are mat
ters upon which the principle OF legislative
government will permit no person or body OF
perSOuS, other than the representatives Oi tuo
people, to sit in Judgment. This is the vital
essence Of Republican liberty, which can not
be defeated upon the pretense OF executing Its
FORMS The plea which was set up by one par
ty in 1876, on behalf of executive absolutism
in South Carolina, and is now set up by the op-
poSite party ON behalf of executive absolutlsm
in Maine that, prior to an organization OF the
chambers the executive may judge and decide
what persons have right to organize them Is
Just as repugnant to the Republican principle
as was the executive absolutlsm exercised Dy
Charles L. and the carpet-bagger governor OF
Louisiaaa in forcibly ejecting members from
their seats after an organization had Deen Ell
fected In an able review OF the executive
usurpation OF the legislative prerogatlve in
Louisiana in 1872 and 1874, Judge Copley
(whose eminence as a writer on constitutional
law is universally recognized) held the follow
ing lang uage:
sAlthough the returning board are to judge of the
election of members, and return only such as they
decide upon, it may be said that TINS leaves the
House at liberty afterward TO review their decisions,
and to seat and unseat according to It's own judg-
ment. But eoneeding this right, the House that
might do this would be- or might be, not the House
chosen by the people, but the House composed or
persons certified TO by the returning board, VINO
alone under the act, would be permitted to partci-
pate in the organization, and who, under the pres
bly, be relied upon 10 nix things, that the ieal
HOuse would never be permitted To exercise ls coz
stitutioual right. The Ill members OF whom the
House is composed might, to any extent Al Tue OPP
tion-or concedng the fairness of the 0osrd-2c-
cording to the judgment Of this board, be set asds