The Portland daily press., 1880-04-28

trine is enunciated for us. In the first Sec
ton of the first article of the Constitution it is
declared that
All legislative powers herein granted shall be
vested in Congress of the United States which
shall consist OF Senate and House of Represen-
tatives.
Then in the very first section of the next ar
ticle of the Constitution it is declared that
The executive power shall be vested in a Presi-
dent of the United States of America.
And in the first section of the next article it
declared that
The judicial power of the United States shall be
vested in one Supreme Court and in such inferior
courts as Congress may from tima to time ordain
and establish.
Now this principle has been thought to be so
important that i'll very many of the constitu-
tions of the various States there is an express
declaration that no one of these branches of
government shall exercise the powers belong
ing to another; that the executive shall not ex-
ercise judicial or Legislative functions, or the
judicial legislative or executive functions, and
so on. say that the principle is as completely
part of the spirit and genius of our national
Constitution as if that instrument contained a
provision similar to that embraced in the Con-
stitution of my own State, of Massachusetts, of
New York, of Tennessee, and l do not know
how many Others
am aware. however, of another provision
of the Constitution, to be found in the second
SectlOn OF tne second artlcle:
Congress may by law vest the appointment of
such inferior officers they think proper in the
President alone, in the courts of law, or the heads
of Departments.
Now, am not sufficiently posted in consti-
tutional law to argue as some gentlemen on
the other side did in reference to the provision
authorizing Congress to make or alter regula-
tions respecting the times, places, and manner
of holding elections for Senators or Represen-
tatives. Upon that provision it was argued
that because Congress is authorized to do this
therefore it cannot do it. l am inclined to ad-
NIT that Congress has the power, under the
Constitution, to provide for the appointment
of inferior officers as they shall deem fit; but
say that this discretion is judicial discretion
in certain sense; it is discretion which Con-
gress is bound to exercise under and by virtue
of the Constitution of the United States and in
conformity to its principles. 1 am sustained in
this by the opinion of the court in the case of
Er pdrte Hennen, which will be found in 13
Peters Reports. 1t is there declared, (page
25S)
The appointing power here designated
Referring to what have been talking about
in the latter part of the section was no doubt in
tended to be exercised by the Department of the
Governmental which the officer to be appointed
most appropriately belonged.
While the Supreme Court. in the case Of Ec
pdrte Seebold recently decided, leave it to be
inferred that Congress has the power of deter
mination, nevertheless the rule of constitution
al construction requires that Congress shall
vest the appointment of inferior officers in that
branch OF the Government to which the power
of appointment fairly belongs Now, while it
may be maintained that the appointment Of
supervisors, who are somewhat in the nature
OF judges of elections, may be made by the
courts, the appointment of deputy marshals by
the courts is violative of sound constitutional
principles and ought not to be permitted in
this bill. What can belong more plainly to
executive power than the action of the mar
shall on the day of election, his business being
to see that the laws of the country are exc
cuted and that peace is kept at the polls? 1t
seems to me there can be no question with re-
gard to this matter, and no question as to the
duty of Congress in connection with it.
In addition to what I have said, 1 wish to
submit a few considerations arising from the
nature of the case, to which 1 think it is fair
that Congress should give heed. 1t is provided
in this bill that the appointment of deputy
marshals is to be made from each party-not
irrespective of party politics, to which we
might perhaps agree; but one man is to be ap-
pointed because he belongs to one party, an
other because he belongs to another party, and
a third because he belongs to third party.
Now, / say that such state of things is de-
structive of all responsibility is ruinous to the
authority of the lnarshals; for it will be under
stood that the power of appointment by law
carries with it the power of removal, so that
no authority short of the circuit court could
remove one of these deputy marshals, whatev-
er might be his behavior. He would have a
right to be there, irrespective of the orders of
the man who ought to be the executive officer
of the Government to preserve the peace at the
polls.
Apart from that / affirm further that the
provisions of this bill are such as toneutraliZe
the execution of the law. This measure does
not join on to the election law anywhere.
There is no provision for application to the
court; there is no setting out of methods of
procedure. 1t is utterly impossible 20 tell what
this amendment is going to mean in practice.
hen l think there is another "catch" in it; l
will not say that this is intentional, but think
it is going to be difficult for courts of law to in
terpret what is meant by the words:
Should there be no session of the circuit courts in
the States or districts where such marshas are to
be appointed, then and in that case the district
judges are hereby authorized to convene their courts
for the aforesaid purpose.
Why there is not State in the Union
where there is not circuit court held. There
fore, it seems to me that it is going to be null
lity. Now, what condition of affairs are we to
face? We must face the fact that in half the
States of this Union there will not be any cir
cult court within months of the day of the
election; and everybody knows that it is not
possible to determine in June whether there is
likely to be any necessity for keeping the
peace at the polls in September or November
So that the whole tendency and effect of this
amendment is to neutralize the election law
We have solemnly determined by fight last
ing over one hundred and six days that so fal
as we are concerned we will not submit to any
amendment of the election law which does moi
increase its efficiency Now, my friends, if we
took that ground upon this subject at the last
session of Congress we are doubly fortified
now, because we have not only the support OF
the Judgment of the Executive, but also the
support of the judicial branch of this Govern.
ment. Thus we stand not only panoplled III
our own opinions on the subject but fortified
by those of both the other branches of the Gov
ernment. Is this a time for US to yield; is this
time for us to give up laws in which we be
lieve, and the efficacy of which has been dem
onstrated to the satisfaction not only of oul
own party, but all parties in the country?
have one other objection; and hesitate
somewhat to name it, because it is possible
may differ from gentlemen for whose opinions
l have the highest respect. But the only righ
way for man to act in deliberative body i
to give it the benefit of his real views, wise O
unwise. come now to speak of cry taking
feature in this amendment-that is the propo
sition to appoint a regular proportion of these
officers from each of the political parties of th'
country. Now, that sounds non-partisan; i
sounds fair; it sounds reasonable; but unless
am mistaken about the principles upon which
republics are formed, there is no such thing a
a nOn-paftlSan repuDllC, anu tne moment yOt
get bipartisan republic that republic is tot
tering to its fall. Parties are created for som,
decent and respectable purpose; they grow ou
of the necessities and needs of mankind; an(
our system of government is founded ON til,
idea of ascertaining which party should be OF
top. That is the very basis upon which we g
through elections, and by virtue of which W,
exist. 1t is not our object, as my friend Mr.
Hawley suggests, to produce twins. Laugh
teri The object is to have one party domi
nant, and accompanying that, one party re
sponsible.
If elections matters go wrong, who is to b.
responsible under the proposed system? Why
nobody in the world
Mr.. Hutchins. The electoral commission.
Mr.. Reed. L will refer to the electoral com
mission by and by.
When you come to real facts, Mr.. Chairman
it will be found that the eXpedients of non
partisanship have never worked practically il
this government. The best system is to hav
one party govern and the other party watch
and on general principles l think it would b
better for us to govern and for the Democrat
to watch. Laughter.] appeal to the expe
rience of gentlemen on both sides whether the
| ever knew any instance of municipal corrul
| ton which did not result from a non-partlsal
| government. say Tweed could not have pei
| petrated his robberies if there had not bee
| Hank Smith and that class of fellows in hi
newspapers from him. L can conceive of n
| than some of this boasted non-partisanship leg
| iSlation and performance. While think ther
| is something in the objection suggested by m
al