The sun. [volume] (New York [N.Y.]) 1833-1916, 1903-07-19

have no jurisdiction to pronounce any
statute. either Of a State or OF the United
States. void because irreconcilable with the
Constitution, except as they are called
upon to adjudge the legal rights Of liti-
giants in actual controversies. They SIM
ply pass upon the rights OF parties az they
come before them. The Supreme Court
will peform no duties except judicial
duties"
| Was counting the Presidential vote any
more than the counting Of the votes re-
ceived by Member OF Congress or an
Alderman judicial duty coming before
them while sitting in foro jusiities Were
! the members of the Supreme Court exer-
/ cising no interference with the President
or Congress" when they co6perated with
> and finally gave the Casti ng vote which
! invested with the dignity and RESPONSE
bilites OF the Presidency one of the candi-
, dates whom few at this day believe to have
I been elected by the peoplef II any one
were to profess a belief at this day that
! Hayes was constitutiorally elected vent
| ure to doubt whether you would think
| that mans name worthy of being cited as
an authority for such an opinion in any
court Of justice or in any public assembly.
| You tell US also that the Federal judici-
airy has steadily refrained from exercising
any political power which belongs exclu-
svely to Congress- and the President, and so
1t has been brought into no collision with
the other departments. 1t will not even
indulge in discussions or express opinions
upon purely political questions" and you
quote with approval its refusal to comply
with request by President Washington OF
the opinions Of the Judges on the construc-
ton Of the treaty with France Of 177s. and
a similar refusal to consider and pass upon
certain pension claims on the ground that
the power proposed to be exercised was
mot a judicial power lcithin the meaning Of
the Constitution"
Was the power by which the by tri-
bunal was created, which 1t was intended to
exercise, judicial power? If 50. by whom
or by what was 1t cpnferredp Certainly
not by the Constitution And no such judicial
power could exist outside of the Const-
tuition. Nay, were not the members OF the
s by tribunal appointed for no other pur-
pose than to exercise political power; to
express opinions upon purely political
questions? We're they selected for any
other purpose but to help count the cleo
toral votes Of each Of the several States
of the Union and designate the candidate
who, had the requisite majority or plu-
rality? Why was each of the members of
the tribunal, even the Ave from the SUI
preme Court, selected, and four of them
at least officially branded by Congress as
partisans if they were not expected to
exert political power? n 1t was the duty
and boast of the Federal Judiciary steadily
to refrain from exercising any political
power which belongs exclusively to the
President or Congress, then how do you
explain its usurpation OF power confided
explicitly and exclusively to Congress-?
Mr.. Justice Bradley of New Jersey, the
tertiam qvid selected by the two Republican
and two Democratic members to constitute
the fifth Of the judicial quota of members
of the electoral tribunal, in delivering his
opinion in support of the Republican count
OF the Presidential electors in the con-
tested States ON the 9th of February, 1877,
said.
Il assume that the powers of the COM
mission are precisely those and no other
which the two houses OF Congress possess
in the matter submitted to our consideru-
ton"
1t was in this, the very first paragraph
of his apologize COMMISSIONS that, in the
language Of Uncle Remus, be il reverently
said, the learned Justice dropped his
molasses jug" From the moment it ira Ms
pred that the two houses could not agree
upon candidate having ma jority Of the
electoral votes, the two joint houses Of
aaI N ho
over the question or any powers to confer
upon this or any other tribunal to meddle
with the selection Of President. They,
as a constitutional corpora ton for the
selection of President, were absolutely
fanctus oftcii "R," says the Constitu-
ton. mo person have such ma jority, then
from the persons ha wing the highest num-
bers not exceeding three on the list OF those
voted for as President the House of Rep
resentatires shall choose Immediately BY
ballot the President"
When Justice Bradley's tribunal met
the two houses Of Congress had no more
TO do in joint ballot with the election of
the President of the United States than
with the election of a successor to Leo
XIII. Nay, the lower house Of Congress
u
larger than was ever enjoyed by the Joint
body, 1t might under possible circum-
stances have set aside both the ca ndidates
whose ma Iority they had been quarrelling
about, and thus have exercised n power
which the Constitution had never given
to the two houses The electoral tribunal
was here depriving the popular branch
Of the Government Of n privilege expressly
gIara eed to it by the Cons tuition, and
of power in the exercise Of which while
it was possible that the wishes Of the people
might have been seriously dis ppointed,
though less so, perhaps, than by the cleo
ton Of He yes, they would not have been
humilnted by fragrant violation Of the
Constitution.
l have given the first sentence of the
learned Judges opinion in the Electoral
Commission cases; now ! will do him the
justice also to quote the last sentence
of his opinion in the Oregon case:
"Broa d nd general views, when entirely
sound and clearly apple; bic, are undoubt-
eddy to be preferred, but it is extremely
ea sy TO adopt broad and general views
that will, il adhered to, carry us into regions
% error and ahsIrdity. The only rule that
is dl,odys and under all circumstances re-
liable, is 10 ascertain al uhdteuer cost and
pains, the true and exact commands of the |
Constitution and the ldrs, and i'm plcily
10 obey them."t
Z. L. Al