Year: 1877

ready before the Commission. To


admit that would be simply to turn


the settlement of the powers of the


Commission over to the Senators and
| Representatives who chose to put in


objections. If the Commission were


to 90 behind the certificates and the


papers sent with them from the


meeting of the two houses, it must


do so on the formal adjudication of


its own powers. The suggestion


that it could be compelled to do so


by the action of "vOlunteer lobjec-
tors" in Congress was of the nature
of a trick, and one to which the
Commission will hardly give serious
attention.


Obviously, if the Commission is to
go behind the certificate, it must be
to dispute its correctness, and if it
does this, it cannot stop short of the
ballot-box, and must investigate
every intermediate step. 1t must
ascertain if the State canvassers act
ed lawfully on the county returns,
and if the county officials performed
their duty with reference to the dis
trict returns; if the district officers
were proper in their dealings with
the votes, and if the voters were
themselves qualified. Such an in
vestigation is entirely pertinent in a
gao aodrrdntO proceeding, and
would be so for the Commission had
the latter the character of a court
entertaining an application for such
writ. But Mr.. Evarts pointed out
that Congress has not given the
writ of quo aoGrrd1lto in the case of
President. 1t might do SO, but as a
matter of fact it has not. No trib
unal exists with the power to take
such proceedings. Least of all is
the Commission such tribunal. Con
gress has no power under the Con-
stitution to give it any such powers.
Congress could give them only to
courts inferior to the Supreme Court,
constituted of Judges nominated by
the President and confirmed by the
Senate. To no other tribunal could
Congress give judicial powers such
as the Democrats claim for the Com
mission.


There are other reasons why Con-
gress could not authorize the Com
mission to do more that decide
which are the proper certificates
from Florida. 1t did not itself pos
sess any further authority than this.
After the certificates were opened !
the votes were then to be counted, |
and Congress was supposed still to |
be continuing the session of last
Thursday. The process must be
summary and decisive. To inter
pose trial by a court with judicial |
and plenary powers and duties, au-
thOrized and required to settle all |
questions that may arise, by the Or
dinary processes of collecting, com
pairing, sitting, and weighing evil
dence, would be simply to prevent |
any election whatever. The votes
must of necessity be counted by the
4th of March. If they were not
the President of the Senate would |
become Acting President, and there
was nowhere any authority given to !
Congress to set up Especial tribunal
with the power to produce such a
result.


The reply of Mr.. O'Conor to these
arguments was, especially in its
opening and in its close, marked by
a good deal of partisan heat, from
which all the remarks on the Re
publican side have thus far been en-
tirely free. The essential part of
the argument was that there need
not result any inconvenience from
the scope sought to be given to the
Commissions powers, because the
Commission could use them so as to
prevent it. This, of course, does not
touch the substance of the objection,
which is that Congress has no right
to place it within the discretion of a
Commission to produce such results. |
Moreover, it fails conspiciously to
reach the constitutional limitations
on the power of Congress itself.


We have pointed out that these
preliminary arguments touch the
broad question of the powers of the
Commission; but they do not ex-
haust it, by any means. 1t will be
again taken up on the discussion of
the merits of the Florida case.
Meanwhile, the Republicans are not
seeking to cOn6ne the Commission
within the strict limits imposed on
it by the Constitution from any fear
of the truth. If the Commission |
decide to open up evidence as to the
election, the Republican counsel |
promise to show that the actual le-
gal vote, some of which the canvas
sers could not reach, was heavily for !
Hayes.