Year: 1877

OF the presidential question upon fifteen
persons-eight Republicans and seven


emocrats-one-third taken from the


Senate, one-third from the House of Rep


resentatives, and the other from the SUI
preme Court. But while the members


have been selected with reference to their


party relations, the Democrats, with char


acteristic generosity, yielding this advan-


tage to the their opponents, the theory


OF the scheme is that the judicial clement


gives character to it. Besides the solemn


oath which each member takes to act
Juolclally the circumstances under which


II is organized implies a pledge of honor


from him that he will leave partisanship


behind him when he enters this commits


sion. We have not doubted either that


the commissioners, whether from the


Bench or from Congress, would honestly
endeavor to discharge their duties, or


that the Democratic claim was one which
could stand the judicial test.


The first question TO be decided by the
commission will be upon the extent of its


own powers over the returns. The bill de
| fines its power to be 'sthat of the two
houses acting separately or together"


which assumes that the President of the
AAtto iO POWCl WllettCNOl " uCIluC
anything in reference to the returns.
The houses meeton next Thursday and
the certificates from the States will be
opened in alphabetical order. Colorado
will be the first State to the vote of which
objection will be made. The question


this case will be one of law. whether the
State was admitted into the Union by
the Presidents proclamation, so as to be
entitled to vote at the presidential cleo
tion. The same question arose upon the
vote OF Missouri in 1921, but was not de-
cided, because it did not affect the result.


The rejection of the Colorado vote would
| now be decisive in favor of Tilden, even
| if Hayes received all of the other contest
ed votes, and hence the question is i'm
portaEt. The fact that the member of
the House has not yet been admitted to
his seat, whilst the Senators have been
sworn in does not affect the question,
The electoral votes depend upon the
| right of the State on the 7th of Nevem-
ber, when they were appointed. If the
State was not entitled to representation


in Congress on that date the electoral


vote must be rejected. To this question


certificate has no relevancy.


For the votes of Florida, which will be


the next objected, to, there will be two
certificates. The votes of both sets of ell
ectors were cast on the 9th of December


as required by law. Both will be certi-
fled to as duly elected by the Governor of
the State-the Hayes electors by Cover
nor StearnS, who W as at the time Cover


nor; but his certificate will be shown to


be invalid by the judgement of the State


court; the other certificate will be by the
present Governor, given in pursuance of
an act of the Legislature ratifyine the
vote of the Tilden electors. Both certi-
ficates are legal on ntheirface, and equally
good. In the absence ofStearns certificate
no question would be made respecting the
| Drew certificate. Being evidence only
the date of the paper itselfis not material.
| 1t is sufficient that it is executed in ac-
cordance with law, and that it shows that
| the acts with respect to which the dates
| are matenal-viz: the appointment of the
electors and their vote-were done on
the days required by the law. The
Stearns certificates being declared to be


invalid by due process of law, the Drew
| certificate will be conclusive, unless the


commission allow it to be impeached and
shown to be false in giving the vote of
| buO CSIdtC lOl lluCus Ills VIII
attempted. If the Drew certificate be
held to be irregular for any reason, and
the Stearns certificate be excluded by
| reason of the decision against its validity
by the State court. the question will arise
whether. in the absence of the evidence
of the appointment of electors required by
the statute of 1902, any appointment can
be deemed to have been made. In that
case, ifthe commission should hold GER
tificate to be necessary, there would be no
vote from the State. The point may be
made, which the South Carolina Supreme
Court has ruled, that the State court has
no jurisdiction to Sacate the Stearns GER
tificate, on the ground that the electors
were United States officers. But this
point cannot be sustained. The State
having, by the Constitution, the power to
appoint, it is clearly contempt for the
State Courts to decide whether the ap-
pointment was made according to State
law; and the State court having so decided
the certificate is vacated. But ifthe COM
mission hold that the State court had no
jurisdiction, the question will arise
whether Congress has not the power to
inquire into the truth of the certificate on
the ground-frst, that the certificate is
not made conclusive by the act of 1902,
and that such papers from merely minis
terial officers are never conclusive unless
made so by positive statute; that Con-
gress required the certificates in the exer-
else of its power to count the votes, and
to facilitate its discharge of that duty ,and
not having made the certificates final, it
did not exclude itself from going behind
it; and, second, even if the certificate, like
the record of court of record, imported
absolute verify, it could be impeached
for fraud. If the commission goes be-
hind the certificate upon either ground,
it must be rejected There was no pre-
tense of bull-dozing in Florida, and all
the election offices were in the hands of
the Radicals, and the returns gave the
State to Tiiden upon any principle of