Year: 1877

TO add that If the Constitution has de


volved upon the two houses of Con
gress the duty of counting the votes


the true votes, and the necessary pow


er of determining what are the true
votes, Congress possesses no power tC
say what shall be conclusive aud unim
| peachable evidence of those votes


but in che performance of their high


Traction the two houses must ascer.
tain what are the true votes, without
{ any limitation placed upon them By
Congress. and without being so re-


strained that they cannot go into the


inquiry as to the truth. Congress may


prescribe modes of authorization, but


merely modes of authorization as aids


and not as conclusive evidence or re-
straints upon the houses in their ac-


ton. We therefore submit that any


legitimate evidence going to determine


what are the true votes is proper and


competent evidence before this tribu-


nal.


And, may it please your Honors,


upon the question OF whether you can


go behind the certificate of the Ex-


ecutive of the State, and whether the


certificate is conclusive or not upon


Congress, beg to refer you to high


aud most responsible authority-an


authority that has the sanction of some


of the most distinguished names that


now adorn the passing history of the Re-


public. In 1873 the question came be-


fore Congress as to the counting of the


Louisiana vote. The electors met:


they voted; they sent up to the Presi-


dent of the Senate the certificate re-


quired by the twelfth articles of


amendments to the Constitution, stat


ing for whom they had voted, and in


closed in that certificate so sent up the


certificate of the recognized Governor


of Louisiana certifying to their due


appointment; and all their proceedings


were regular on their face from begin


ming to end. There was no objection


made, and none intimated to those
proceedings, because of their non-con-


formity to the statues of the United


States. When that was opened obiec-


ton was made to it; but prior to the
/ time when the vote was opened it was


understood that there was some diff


Guilty in reference to that vote of some
/ kind or other


The Senate of the United States
directed its Committee on Privileges
and Elections to inquire into the cir
cumstances attending the election of
the electors Of that State That com
mittee went into the inquiry; it exam
ined witnesses, and they were also
cress-cxamined All the facts that
were needed and desired lying behind
that certificate were gone into fully by
that committee. Having gone into all
those facts, they made their report to
the Senate. In that report, made
February 10, 1873, (Which is to be
found on page 1918 of the Cougression-
al Globe, part 2, third session of the
Forty second Congress- the chairman
of the committee, one of the honorable
commissioners whom | have now the
privilege of addressing, states as fol- !
lows:


IF Congress chooses to go behind |
the Governors certificate, and inquire /
who had been chosen as electors, 1t is |
not violating any principle of the right |
of the States to prescribe what shall I
be the evidence of the election of elec-
tors, but it is simply going behind the /
evidence as prescribed by an act of |
Congress; and, thus going behind the
certificate of the Governor, We find /
that the official returns of the election |
of electors, from the various parishes I
of Louisiana, had never been counted |
by anybody having authority to count
them"


In the conclusion of the report SEN
tor Morton says;


Whether it is competent for the
two houses, under the twenty second
joint rule, lin regard to the Constitu-
tionalty of which the committee here
give no opinion to go behind the cer-
tiicate of the Governor of the State,
to inquire whether the votes for cleo
legal returning board created by the
ing such count, the board had before
them the official returns, the commit
tee offer no. suggestions, but present
only statement of the facts as they
understand them


Now, in reference to the power of the
joint rule of the two houses, it is proper
before [ proceed further that | should
make single remark. That joint rule
could give to the two houses no power
they did not possess under the Consti-
tuition. 1t could neither enlarge nor
abridge their Constitutional powers.
1t is beyond the authority of Congress
or of any other tribunal to enlarge or
abridge the powers with which the
Constitution has vested that body. A
joint rule night formulate that power;
a Joint rule might indicate the manner
in which that power should be exer-
cised; joint rule might prescribe the
methods Of proceedingin the execution
of the powor; but it could neither give
power nor diminish power. In this
report the only objection made to the
vote of Louisiana is that the returns
for electors in that State had never
been canvassed or counted. 1t was
conceded that the certificate of the
Governor was regular, perfectly regu-
lar on its face; and the honorable chair
man of the committee, after stating
those facts, says that he declines to
make any suggestion to Congress as to
what disposition ought to be made of
the vote.


May it please your Honors, the evil
dence taken by that committee was be-
fore the two houses of Congress when
they met to count the vote four years
ago. The intimation of the objection
in the report was before those two
houses, and that intimation found shape
and substance and form in a motion
made by the Senator from Wisconsin,
that the vote of Louisiana should not
be counted. I am aware that that
Senator at the time maintained that
Louisiana was not State bearing such
relation to the Federal Union as au-
thorized her to participate in the lee
ton of Chief Magistrate, but in that
position it is well-known political
and historical fact that few or none of
the Senators sympathized. He made
his motion, stating different grounds |
for the motion. but the only ground
before the Senate-oonceding that
Louisiana was a State and could par
ticipate in that election-the only
ground before the two houses of Con-
gress upon which her vote could be
excluded by any possibility or under
the process of any sophistry or logic,
was that, although the certificate of the
Governor to the election of the cleo
tors was regular in form, yet
the return lying behind that GER
tifcate and upon which that GER
tifcate purported to be founded |
had never been canVassed. The ques-
ton came up for determination in the