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1877. CONGRESSIONAL RECORD-HOUSE . 771 finding out what is the vote that you are to count, and compelling ent power that is talked about vested in him by the Constitution as yon, as it does courts, presidents, everybody, to follow the judgment being the supreme judge only in the presence of indifferent witnesses of whatever tribunal should have ascertained that fact for you, be who have no more right to interfere than a witness in court has with cause it is only an act which you a.re to tlo, not a decision that you the proceeding of the judge, would they have done thatT 1 do not are to render. think that the idea ever entered their heads. Anti as you sweep along But, as I have said, I only intended on this occasion to explain in down through the course of time of cases when there was no contest as brief a way as I could exactly what the bill is and in a general or dispute, but the merely formal readirig and counting of papers, way the grounds upon which it rests. The illustrations that might it is of very little consequence to inquire whether the President of be still further made to show that this deciding power of which I the Senate read and counted them, or whether the tellers read and am speaking does not rest wit.h yon, and as I think to show equally counted them. or whether nobody read and counted them, so that you that it does not rest with either House of Congress until Congress got at what everybody knew beforehand was the result. But when provides a law that allows it to rest there, are so numerous that the ever and on the first occasion that any question arbse as to what was whole day might be spent upon them. the constitutional vote of a State, tJither arising from ineligibility or ; There is one other topic which I will only just allude to at this pl'es other question about its electors or from the condition of the State ent time, which of course bears upon it, and that is, what is called the itself, (which is exactly the same thing, for there the question is, is contemporaneous construction of the Constitution in snch cases. It it the \Ote of a State, and that involves not only the eligibility of '!Ia-s been said by many persons, and it appears to be largely believed, the elector, the day of the meeting, or the existence of the State, or if you can take the statements of newspapers, that for a great many the pursuit of the State law-it involve& one as much as the other,) years the occupant of your chair ·has, with the acquiescence of every you :find that the President of the Senate never hinted on the face l>ody, so construed the Constitution; and so it is implied that that of the earth that he had such a power, and that each Honse in the ab must be the true construction of the Constitution in the present case, sence of legislation assumed-I think there is great doubt about the because for so many years or until a few years back, fifteen or twenty correctness of their assumption-but they did assume, either by the or whatever the time may be, it had always been done. If that were expression of their judgment or by the dictates of their command, true, it would be entitled to weight in the consideration of this ques to determine wbat should be done. tion, perhaps to great weight; but a material inquiry, aa it is with So, then, Mr. President, it cannot be.maintained that this bill is un- all cases of precedent, is to know whether it is trne to begin with. constitutional upon tho ground that it takes away from thePresident 1 Now I deny emphatically that that is the history of the practice of the Senate or the House of Representatives a power which the under the Constitution ; and when I say that I do not mean to say Constitution has vested in them free from limit, and free from guide, that the President of the Senate has not counted the votes in the and free from regulation, to be exercised according t.o their own opin- arithmetical sense, although I suppose as a matter of fact that from ion of what may be the public propriety of the occasion. , the time of John Langdon to Schuyler Colfax the President of the Having said so much, Mr. President, for the present I dismiss the Senate never counted one of them. I will take it for granted that as subject, in the hope that the Senate will carefully consider whether a matter of law he did do the enumeration, although I suppose as a it is wise, by stimulating doubts in their own minils, or by allowing matter of truth in e\ery instance the tellers who sat at the Clerk's their wishes to outrun their judgment, to send this Republic on the desk did all the counting. What did take place for the first forty first Thursday in February, or the second Wednesday in that month, years of the Republic T There never was an instance in which a paper like the mountains that the poet haa spoken of that were coming from a State under its great seal and certified by its governor Toppling evermore as to who had been elected electors, or the certificate of the electors Into seas without a. shore, themselves as to how they had voted, was ever drawn into question; and the thing that the President of the Senate had to deal with was or whether it is better that in the fair course of equal law a dispute exactly the sort of thing that you had to deal with when yesterday shall be justly settled. · · you laid before os, under the great seal of the State of Maine, the Mr. WRIGHT. I move that the Senate now adjourn. credentials of a Senator, a public act of that great State in a con Mr. CONKLING. I ask the Senator to withdraw that motion, if dition of peace and order, with only one government or pretended he will, and let me move that the Senate proceed to the consideration government, with only one seal, and with the universal acquiescence of executive business. of all parties, althontzh it is full of parties. The reign of law had .Mr. WRIGHT. Very well. produced a result and there was nothing for yon to decide, if you Mr. CONKLING. I make that motion. had the power of decision ; all that you had was to do ; for the act of The motion was a~reed to; and the Senate proceeded to the con 1866 says that the governor of the State shall certify to the President sideration of execut1ve business. .After fifteen minutes syent in ex~ of the Senate who has been elected. Suppose you were to assume on ecutive session the doors were re-opened, and (at two o clock and such a set of papers as that that you had the right to decide whether fifty-five minutes p.m.) the Se~ate adjourned. that was the certificate of the governor-and the Constitution says pretty much the same thing in this case-would you eYer think of doing such a thing! I rather think not. .. But that is.a little off what I was saying about the precedents. On the :first occasion when, in the language of the suggestion of the con HOUSE OF REPRESENTATIVES. stitutional convention in order to put the Government into force, the eiectors were recommended to send their certificates, not to the Presi SATURDAY, J_anuary 20, 1877. dent of the Senate as the Const.itution in explicit terms says, but to The House met at twelve o'clock m. Prayer by the Chaplain, Rev. the Secretary of the United States, and that the Senate, not yet hav I. L. TOWNSE~'D. ing a Vice.-President, not yet having a constitutional President, for The Journal of yesterday was read and approved. the Constitution says ilhat the Vice-President shall be the President of the Senate and it is only in his absence that a President pro tern J. M. MICOW. pore is to be appoint-ed, a President of the Senate shoultl be appointed On motion of Mr. WILLIAMS, of Alabama, by unanimous consent, for the sole purpose of opening and counting, as the words aro, the the bill (S. No. 109) for the relief of the estate of J. M. Micow, of electoral votes. What did it mean f Is there anybody who hears me the State of Alabama, was taken from the Speakeis table, read a first who believes that that constitutional convention by those words in and second time, referred to the Committee on Military Affairs, and tended to command the President of the Senate elected for the sole ordered to be printed. purpose of counting to enter into or have a right to enter into an REVISION OF THE LAWS. inquiry as to what States had ratified the Constitution, which inquiry should bind anybodyT Suppose the Senate differed with Mr. John Mr. DURHAM, by unanimonB consent, from the Committee on the Langdon, suppose he had said when the papers all came in "There Revision of the Laws, reported back the bill (H. R. No. 3156) to per is one from Rhode Island," that had not yet ratified the Constitution, fect the revision of the statutes of the United States, with amend as we know historically; suppose there was a vote from Rhode Island ments by the Senate, and moved that the House non-concur in the for somebody and Mr.

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