The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1886-12-15
THEIR TRIAL MUST GO ON.
The Motion in Behalf of the Defendants
in the Conspiracy Case 0yerruled.
Commissioner Var Buren,, in a l-Sustained
Opinion, Holds that He Has Jurisdiction
beginning of the Examination.

About sixty persons were in the United States
grand-jury-room yesterday when Commissioner
Van Buren, appeared to give his ruling in the
case against the persons charged with conspiracy
to commit fraud in the recent election, the point
at issue being whether he had legal authority ss
United States magistrate to conduct he in
quiry. Coy. Span and Counselman were pres
ent, were all the attorneys in the case but
Bernhamer did not appear. The Commissioner
waited fifteen minutes longer. and as Bernhamer
did not arrive began to deliver the ruling in his
absence. AS the reading began the belated
Bernhamer sauntered In. He did not take q
seat with his confederates, but remained in the
crowd near the door. He was evidently
anxious to create the impression that
be was in an unusually serene and
happy frame of mind, and shook hands
with number of acquaintance who stood by
him. Counselman, with flushed face, moved
uneasily about in his chair, eagerly watching
every movement made by the Commissioner or
by the counsel for the prosecution. Coys equa-
nimity for once appeared greatly disturbed.
For time he pulled away violently upon
cigar. the end of which fairly blazed under the
great suction behind it. AS the reading by the
Commissioner continued he grew more and more
interested, and his features twitched nervously.
Finally, he threw his cigar away, and sat in
breathless attention. Spaan certainly exhibited
the best nerve of any of the quadrilateral He
gave close and respectful attention to the read
ing, and, unlike Bernhamer, made no effort to
show off. The Commissioners ruling was as
follows:
without discussing the question of my right,
sitting as United States Commissioners. to hear
motion 20 quash an affidavit pass at once to
the consideration of the merits of the question
SO presented.
''The facts stated charge that the defendants,
two of whom were officers of election, at
which Representative in Congress was voted
for. conspired together, and in pursuance of such
conspiracy changed and altered certain tally
sheets and certificates of said election, by
ing and substituting figures and tallies upon
the returns Of certain county officers voted
for at the said election. The affidavit is based
upon Sections SSH, 5515, 554O of the United
States Revised Statutes, 1878. Two main cues
lions present themselves for our attention: First
has Congress in such acts transgressed it's coDSti
tuition limitations4 Second, has this court un-
der the facts alleged, the jurisdiction to examine
the defendantsy The clause of the United States
Constitution regulating the election of Senators
and Representatives is as follows:
1.-THE times places and manner of holding elections
for Senators and Representatives shall be prescribed in
each State by the Legislature thereof but Congress
may at any time By law make and alter such regula
tons, except to the place Of choosing Senators.
Under such authority Congress passed tho
bill commonly known as the enforcement act
of which these sections a part, and it may
tend to throw some light upon the discussion to
glance for moment at the history of that legis-
lation. The bill was introduced into Congress
during the presidency of General Grant; Sena-
tor Edmunds was chairman of the committee to
which it was referred in the Senate, and Roscoe
Conkling of similar committee in the House
The lower body passed the bill by overwhelm-
ing majority, and the Senate concurred without
division, and the President signed it, after
opinion rendered by the Attorney general, to
the effect that it was in complete harmony with
the Constitution. which opinion, coming from so
eminent and able lawyer as Judge lockwood
Hoar, should be entitled to great respect
defendants counsel insist that the imposi-
ton of duty upon State officer by the fed
eral government is clearly violation of the
United States Constitution; that the United
States and separate States are independent
sovereignties, and cite the following authorities:
Commonwealth of Kentucky VS.. Denison, "a
How, &C., ex parte Sebold, 100 u. S.. 81: Fed
erast 448 ct seq; Cooley's Constitutional Linn
itations g. 1T3 The Siebold case, after distin-
gushing the case cited in Howard, says:
IF the officers in an election for Representatives
owe duty to the United States and are amenable to
that government as we'll to the State. as think
they then there is why each should not
owed to itself though referring to the The
questions involved have respect not to the au
tonomy and existence of the States than to the
tnued existence of the United States government
to which every may look for security and protec
ton in every part of the land.
''This opinion is concurred in and cited in the
case of the United States VS.. Gale and another,
100 y. ST. GO, In which the syllabus says:
'The court adhe, to the rulings in ex parte Sebod
that Sections 5512 and 5515 relating to violations Of
duty by officers of election not repugnant to the
Constitution of the United States, and holds them to
be valid.
II find in the Federalist at the place cited, the
following words Of Alexander Hamilton, discuss
ing this same question:
Every government ought to contain in itself the
means of its preservation. Nothing can be more
elections for the national in the hands of
the State legislatures would leave the existence of the
Union entirely at their mercy; they could any time
annhate it by neglecting provide for the choice of
persons to administer it's affairs. | am greatly mis-
taken If there be any article of the whole plan of reg
ulating electionsl more completely defensibo than
this
'In ex parte Yarbrough, 10 u. S., D. 667,
speaking to the same point, the court says:
IF the government Of the United States has within
its constitutional domain no authority to provide
against these evils its very sources of power may
by poisoned by corruption or controlled by violence
and outrage without legal restraint; then indeed is
the country in danger. and its best powers its highest
purposes the hopes which it inspires, and the love
which enShrinesi it. at the mercy of the combinations
OF those who respect right but brute force the
hand, and unprincipled corruptionists, on the
other"
I'm the same case. which was one in which
Yarbrough and others were indicted for copspir-
acy to intimidate colored man in the exercise
of the right of suffrage at an election fer law
full person as a member of the Congress of the
United States, the court says
THAT government whose essential character is re-
publican, whose executive head and legislative body
both elective whose most numerous and powerful
branch of the legislature is elected by the people d
rectly. has no power by appropriate laws to secra
this election from the influence Of violence of corrnn
ton nd of fraud is proposition SO startling as to
arrest attention and demand the gravest considera.
ton IL this government is anything more than a
mere aggregation of delegated agents Of other States
and governments, each of which is superior to the
general govsrnment. it must have the power
to protect the elections which its exist
ence depends from violence and corruptiou