The statement of this position seems to be its refutation. We are now discussing a question of jurisdiction. In whom is the power to determine who have been appointed electors —in Congress or in the State? It was gravely answered that it is in Congress when the State to be investigated is near the seat of Government, or the inquiry to a few election precincts only, but it is to be left to the State in other cases; that Congress may exert a power of inquiry into an election in Delaware which is impossible as to California, or may inquire into one election district in New York, but cannot into twenty or a hundred. This claim would never have arisen in any man's mind before the days of railroads and telegraphs. Such investigations, possible only to the most limited extent now, would have been wholly impossible as to most of the States when the Constitution was adopted.
It is asked, is there no remedy if the officers to whom the States intrust the power of ascertaining and declaring the result of the election act fraudulently or make mistakes? The answer is that the Constitution of the United States gives no jurisdiction to Congress, when the certificates are opened and the votes are to be counted, to correct such mistakes or frauds. A like question may be put as to every public authority in which a final power of decision is lodged. The danger of mistake or fraud is surely quite as great if the final power be lodged in Congress, and the framers of the Constitution acted in nothing more wisely than in removing from Congress all power over the election of President.
There was never yet a political party in this country, or in England, which decided ordinary election cases, except in the clearest case, on other than party considerations. In England and Canada it has been found necessary to commit to the courts the consideration of election cases. It is seldom that either House of Congress has resisted partisan temptation in election cases, when one seat only was the prize of the contest. Is it likely that public virtue would withstand the temptation of the Presidency?
The simple doctrine on which the Commission proceeded was that the right to determine absolutely and finally who are the duly chosen presidential electors is committed by the Constitution to the States. The judgment of the tribunal established by the State for that purpose is conclusive on all the world. Congress is only to count the votes of the officials found by the State to have the right to cast them.
It is said that in the Oregon case the Commission departed from this principle, which they had acted upon in the case of South Carolina, Florida and Louisiana. But there is not the slightest truth in that suggestion. In all of those three cases the laws of the State had established a tribunal with absolute right to determine all questions arising out of the election. The tribunal had the right to reject votes, or count votes, according as they found the votes to be lawful or unlawful. They had the right to reject returns from election precincts where they found there could have been no lawful or orderly election by reason of violence, or where they found the returns untrustworthy by reason of fraud. This power they exercised, and from it there was no appeal.
On the other hand the laws of Oregon did not provide for a board of State canvassers, but provided that the Secretary of State should canvass the votes in the presence of the Governor, and prepare duplicate lists thereof, which lists should be singed by the Governor and Secretary. These lists, certified by the Secretary, were before the Electoral Commission, and disclosed the choice of Republican electors. The Governor, however, undertook to declare his opinion of the result. That opinion was that a Democrat was chosen who had received less than a majority of the votes, or to use the phrase of the Governor, "received the highest number of votes cast for persons eligible," because his Republican competitor was not eligible; and he, therefore, certified that the Democrat had the largest number of votes cast for persons eligible. That Democratic elector proceeded then to hold a meeting, at which he was the only person present, and as the two Republicans whom everybody admitted were lawfully chosen, did not meet with him, he proceeded to fill two vacancies himself.
The Secretary of State made the canvass required by law, recorded it and filed it in his office. He made that canvass in the presence of the Governor. He could not change it. He could not tamper with it. He had completed his official duty when he had completed it. So that the Governor's certificate as to the effect of the election was of no more official character than a like certificate of the Governor-General of India would have been.
There was no claim or pretence in any quarter that the Republicans did not have a lawful majority of the votes cast for electors in Oregon. The only claim was that one of the electors was postmaster, and that he did not lawfully resign before he was chosen elector. He was postmaster at the time of the election, but resigned a few days later. He was also chosen after he had resigned to fill the vacancy in the Electoral College, if his ineligibility created a vacancy, in the regular form according to the laws of Oregon. There was no question or pretence in any quarter that the will of the people of Oregon was not given due effect by the judgment of the Electoral Commission.
I do not believe that there are any considerable number of intelligent persons in the country, now that the excitement of the time has gone by, who doubt that the will of the people of South Carolina and Florida and Louisiana was carried into effect by the judgment of the Commission; and that their judgment baffled an unscrupulous conspiracy to deprive the majorities in those States of their lawful rights in the election because those majorities were made up largely of negroes.