818 -SENATE. 1 JANUARY 23,

County, Iowa, for a commission of inquiry concerning the alcoholic terday, Janua1·y 22, 1877, at which were introduced a preamble and liquor traffic, to the C6mmittee of Ways and Means. resolutions by Ex-Lieutenant-Governor E. 0. Stanard, of that State, Also, the petition of the Massachusetts Medical Society, for an ap­ and which passed the meeting with but one dissenting voice. The propriation to print the new catalogue of the libmry of the Surgeon­ Merchants' Exchange of Saint J.-ouis is composed of over two thou­ General's Office, to the Committee on the Public Printing. sand members, embracing in thu.t membership men of capital, men By Mr. SlNNICKSON: The petition of William Orr and other citi­ of intelligence, men of patriotism and devotion to their country, · zens of New Jersey, tor cheap telegraphy, to the Committee on the men who control the commercial interests of the great Mississippi Post-Office anfl Post-Roads. Valley, men who belong to all the different political organizations By Mr. SLEMONS: The petition of J. W. Barnett and other citi­ known in our conntry. I will read the preamble an•l resolutions: .zons of Arkansas~ of similar import, to the same committee. Wherea.q the Merchants Exchange of Saint Louis, an organization for strictly By Mr. VANCE, of North Carolina: The petition of J. U. Stepp QOmmercial purposes, E'mbracing a. membershlp of nearly two thoosancl. enga~ed in nearly all the commercial and trnancial pursuits of this trade center, ha.ve v1ewed and other mtizens of North Carolina, of similar import, to tho same with solicitude and alarm the recent political complications of the country and felt committee. their disastrous effects on her commerce and on that of our city; Also, a leUe1· from the Commissioner of Pensions, concerning the And whereas we rejoice at the results of 1he deliberations of the joint commit­ tee of the Senate and House of Representatives, and believe the plan reported by ' petition of Dovey Pace for arrears of pension, to the Committee on them t() be the best available one for the solution of our presidential complications: l'nvalid Pensions. Therefore, By Mr. WALSH: The petition of Conrad Dalfer and other soldiers Be t".t resolved, That we approve of the provisions of the bill reported to Congress of the late war, to change the law so as to allow pensioners to receive by said joint committee and urge upon our Senators and Members of the House of pensions from the date of their di charge, to the same committee. Representatives a hearty support of the same. By Mr. WIGGINTON: The petition of A. J. Gillette and 62 others, I move that the memoriallio upon the table. for a post-route to connect the China post-office on route 46136 with The motion was agreed to. the Temeseal post-office, San Bernardino County, California, to the Mr. BURNSIDE presented the petition of J. B. Taylor, D. ,V, Kelsey, Committee on the Post-Office and Post-Roads. and other citizens of Manlius, Onondaga County, New York1 prayiu~ Llso, the petition of F. M. Stone and 110 others, for a post-route for a general law to prohibit the liquor traffic within the national from Soledad via Peach Tree and Slacks Cafion to Imusdale, Mon­ domain; which was referred to the Committee on Finance. terey County, California., to the same committee. Ur. RANDOLPH. I present thirteen petitions of citizens of New By lli. WILSHIRE: The petition of William A. Britton, of Arkan­ Jersey, praying for the passage of some bill by which the present presi­ sas, to be paid $2,000.74 compensation for repairs made by him while dential contest shall be justly n.nd promptly decided. I may say with United States marshal, uvon a building used as a jail by the United reference to these petitioners that they consist of members of both po­ States authorities, to the Committee on the Judiciary. litical parties; that they represent all the interests that New Jersey has; that they are citizens of high standing, and that their prayer should be promptly and reasonably considered. I move that the peti­ tions lie upon the table. The motion was agreed to. IN SENATE. 1\Ir. ALCORN presented a memorial of the executive committee of the Mexican war veterans of the State of Mis issippi in favor of the TuEsDAY, January 23, 1877. pastmge of a law granting pensions to the soldiers of the Mexican war to date from the time of their enlistment; which was referred Prayer by the Chaplain, Rev. BYRON SUNDERLAJ.~, D. D. the Committee on Pensions. The Journal of yesterday's proceedings wa~ 1·ead and approved. to Mr. WINDO.M presented a petition of citizens of :Minnesota, pray­ HOUSE BILLS REFERRED. ing that the telegraphic business may be transferred to the superin­ The bill (H. R. No. 820) for the relief of the mission of Saint James, tendence of the Post-Office Department and for cheaper telegraphic in Washington Territory, was read twice by its title, and referred to facilities; which was referred to the Committee on Post-Offices and Post-Roads. the Committee on Public Lands. • l\!r. WAD LEIGH presented the petition of Osborn Stanley, Pleas­ The following bill~:~ from the House of Representatives were sever­ ally read twice by their titles, and referred to the Committee on the ant Coppock, and other citizens of Ohio, praying for the prcbibition Judiciary: of the manufacture antl sale of alcoholic liquors in the District of A bill (H. R. No. 4475) removing the political disabilities of Joel S. Columbia and the Territories; which was referred to the Committee Kennard, of Savannah, Georgia; and · on Finance. A bill (H. R. No. 4476) to provide for the appointment of an official Mr. KERNAN presented the petition of William and William H. short-hand reporter for the United States courts in and for the dis­ Lewis, praying for an extension of their letters-patent for photo-, trict of California. graphic plate-holder; which wasre~rred to the Committee on Patents. Mr. INGALLS presented the petition of H. M. Metcalf, Thomas EXECUTIVE COMMUNICATION. Prunty, W. Rucker, and numerous other citizens of Nemaha County, The PRESIDENT pro tempo1·e laid before the Senate a letter of the Kansas, praying for the· passa.ge of a law to enforce the provisions of Secretary of the Treasury, inviting attention to the terms of the act the of July !M, 1866, relating to the purchase by the approved :March 3, 1875, and recommending an appropriation of money Government of all the telegraph lines, property, and effects of any in lieu of bonds to be paid to Captain J. B. Eads, on account of the and all companies acting under the provisions of said a-ct; which was construction of jetties, &c., to maintain the channel between the referred to the Committee on Post-Offices and Post-Roads. South Pass of the Mississippi River and the Gulf of Mexico; which Mr. EDMUNDS presented the petition of Clara Lyon Peters, Han­ was referred to the Committee on Appropriations, and ordered to be nah Coffee, L. F. Sawyer, and others-240 men and 339 women-579 printed. citizens of the State of illinois, praying for a sixteenth amendment PETITIO~S AND MEMORIALS. to the Constitution of the United States prohibiting the several States from disfranchising United States citizens on account of sex; which The PRESIDENT 111'0 tempore presented a petition of H. Luhre and was referred to the Committee on Privileges and Elections. . 25 other citiz-ens of Lavernia, Texas, praying that telegraphic busi­ ness be transferred to the superintendence of the Post-Office Depart­ REPORTS OF COMMIITEES. ment and for cheaper telegraphic facilities; which was referred to the Mr. SPENCER, from the Committee on Military Affairs, to whom Committee on Post-Offices and Post-Roads. was referred the bill (H. R. No. 4258) to provide for . the payment for Mr. PADDOCK presented a petition of citizens of Fremont, Ne­ certain improvements on lands now embraced in the military reser­ braska, praying ~or the repeal of the law imposing a tax on the de­ vation of Fort Cameron in the Territory of Utah, submitted an ad­ posits, circulation, and capital of banks; which was referred to the verse report thereon; which was ordered to be printed, 8nd the bill Committee on Finance. was postponed indefinitely. Mr. WITHERS presented the petition of Mrs. Jane DuJany, widow He also, from the same committee, to whom was referred the peti-. of the late Colonel William Dulany, pr&.ying to be allowed arrears of tion of Leopold Kaspeles, late of Company E, Fifty-seventh Regiment pension; which was referred to the Committee on Pensions. Massachusetts Volunteers, praying for the passage of a law granting Mr. WALLACE presented a memorial of A. E. Borie, John Welsh, him a balance of bounty claimed to be due him upon his diseharge John C. Bullitt, and other leading citizens of Philadelphia, without from the United States service, submitted an adverse report thereon; distinction of party, praying for the passage of the electoral-count which was ordered to be printed, and the committee discharged from bill; which was orclerecl to Jie on the table. the further consideration of the petition. He also presented tho petition of George Shiras,jr.,John H. Shoen­ He also, from tho same committee, to whom was referred the bill barger, John n. Guthrie, Maleolm Ha.y, Thomasl\L Marshall, and other (H. R. No. 2603) for the relief of Catherine Harris, reported it without Jeading citizens of Pittsburgh, Pennsylvania, without distinction of amendment and submitted a report thereon; which was ordered to be party, praying for the passage of the electoral-count bill; which was printed. i ordered to lie on the table. He also, from the snme committee, to whom was referred the peti­ Ho also presented the petition of leading citizens of Wyoming tion of Peter P. G. Hall, of Pennsylvania, paymaster of the United • County, Pennsylvania, praying for an amicable adjustment of presi­ States Army, praying that he may be refnnded money he was obliged dential difficulties: which was ordered to lie on the table. to pay in consequence of the embezzlement of a clerk, submitted a Mr. C.OCKRELL. I bold in my hand the proceedings of a moot­ report thereon accompanied by a blll (S. No. 1175) gr~nting relief ttl ing of th.:: _.Merchants' E:x.clfange Q·f th~ city of Sa.int Louis, held yea. Major P. P. G. Hall, a paymaster of the United St:ttes Army. -

1877. CONGRESSIONAL RECORD-SENATE. 819 \ ! The bill was read twice by its title, and the report was ordered to for the first offense, be fined not more than $200 and be imprisoned in be printed. · the District jail not less than two months or more than one year, and BILLS INTRODUCED. for any subsequent offense shall be imprisoned in the penitentiary for Mr. KERNAN (by request) asked, and by unanimous consent ob­ not less than one year or more than three years. tained, leave to introduce a bill (S. No. 1176) authorizing William Mr. EDMUNDS. I should like to have the Senator in charge of the Lewis and William H. Lewis to make application to the Commisiiouer bill state what is the present punishment for that offense. of Patents for the extension of liheir patents for new and nsefnl pho­ Mr. SPENCER. There is a letter from the attorney of the District tographic plate-holders; which was read twice by its title, and re­ which states the necessity of the bill. ferred to the Committee on Patents. Mr. EDMUNDS. I should like to hear it read. Mr. KERNAN. At the request of a citizen of the State of New Mr. SPENCER. There is no law at all by which they can be pun­ York, I ask leave to introduGe a bill relating to the revision of the ished. statutes. I have not examined it myself. Mr. EDMUNDS. No law to punish breaking into a house and steal­ By unanimous consent·, leave was granted to introduce a bill (S. No. ing gas-pipes! 1177) to correct the revision of the statutes of the United State~; 1\ir. SPENCER. I ask that tho letter be reported which is with the which was read twice by its title, and referred to the Committee on bill. the Revision of the Laws of the United States. The PRESIDENT p,.o ternpore. The letter will be sent for. llr. WITHERS asked, and by unanimous consent obtained, leave to 1\Ir. SPENCER. The letter accompanies the bill in the shape of a t introduce a bill (S. No. 1178) granting a pension to Francis A. Lieb­ report. [A pause.] I think there will be no objection to the bill schutz, late of Company K, Ninth Kansas Cavalry, brevet first lieu­ and it is unnecessary to wait for the letter of the attorney of the Dis­ tenant United St.ates Volunteers; whir.h was read twice by its title, trict. and referred to the Committee on Milit:n·y Affairs. . Mr. WHYTE. I should think that the bill ought to go to the Com­ Mr. SPENCER asked, and by unanimous consent obtained, leave mittee on the Judiciary. This is an important bill, relating to the to introduce a bill (S. No. 1179) providing for the care and punishment exercise of criminal jmisdiction iu the District. It is evidently a of vagrants, drunkards, idlers, and for other purposes; which was bill such as in some of the States is passed for the purpose of punish­ 1·ead twice by its title. ing persons guilty of ma1iciously destroying property, and it ought Mr. SPENCER. I desire to state that this bill was sent to me by to be prepared with 1)roper care under the Jncliciary Committee. I the commissioners of the District of Columbia. I move that it be hope, therefore, it will be referred to the Committee on the Judiciary. referred to the Committee on the District of Columbia. Mr. SPENCER. I wish to state that this bill has paRsed the Honse The motion wae agreed to. of -Representatives, having been drawn by the attorney of the Dis­ Mr. CHAFFEE asked, and by unanimous consent obtained, leave trict of Columbia and been recommended by the District commis­ to introduce a bill (S. No. 11tl0) to authorize the President to restore sioners. There is a letter showing the necessity of it from the attor­ Samuel M. Robbins to his former rank in the Army; which was read ney of the District, Mr. Birney, which states that there is no law twice by its title, and referred to the Committee on Military Affairs. punishing such offenses, but that the crime is only a trespass. Mr. BARNUl\f asked, and by unanimous consent obtained, leave to Mr. WHYTE. I have no doubt the bill was drawn by the attorney introduce a bill (S. No. 1181) for the relief of Thomas A. Weston; for the District, but it ought to be submitted to the J ndiciary Com­ which was read twice by its title, and referred to the Committee on mittee, which has charge of such matters. It being a bill to punish Patents. for crime, the crime ought to be defined with judicial exactness. Mr. WRIGHT (by request) asked, and by unanimous consent ob­ Therefore I hope it will be referred to the J ndiciary Committee that tained, leave to introduce a bill (S. No. 1182) for the relief of the they may first pass upon it before we adopt it as a law. Louisville Transfer Company of Louisville, Kentucky, and the Cin­ Mr. SPENCER. I ask that the letter of the attorney be read. cinnati 'l'ransfer Company of Cincinnati, Ohio; which wns read The PRESIDENT pro t.empm·e. The letter will be read. twice by it.s title, and referred to the Committee on Claims. The Chief Clerk read aa follows: Mr. INGALLS asked, and byunanimousconsent obtained, leave to ATTORXEY'S OFFICE, DISTlUCT OF COLUMBIA, introduce a bill (S. No. 1183) granting a pension to Harriet Moss; Washington, January H, 1877. which was read twice by its title, and referred to the Committee on Gm."TLEllm~: The bill No. 4041 Honse of Representatives, passed January 6, 1877, Pensions. is necessary for the protection of fixtures in tho houses in this District. The busi· ness of strippin~ houses, unoccupied for the moment, of the water-pipes, gas-pipe!'!, OFFICERS OF THIRD ARTILLERY. and fixtures, bells, stop-cocks, range-castings, bath-tub linings, bas been so stcatltly Mr. COCKRELL. If the is through, I move that prosecuted m this District as to have depreciated the valut- of house property. A the Senate proceed to the consideration of the bill (H. R. No. 2461) bouse can hardly be lt>ft over night without a ~uard. The depredators have fro­ qnently escaped through 1 echnicalities of the law against larceuy. for the relief of certain officers of the Third United States Artillery I trust that the bill Will have your recommendation. who suffered by fire at Fort Hamilton, New York Harbor, on the 3d of Very respectfully, W. BIRNEY, :March, 1875. .A.ttometJ, District of Oolumbia. The motion WM agreed to; and the Senate, as in Committee of the Mr. EDUUNDS. Let us hear the bill read again. Whole, proceeded to consider the bill. It authorizes the proper ac­ The Chief Clerk read the bill. counting officers of the Treasury to settle with the first lieutenants of Mr. WHYTE. One of the most material words in the State s·tatute the Third United StatesArtillery who lost their personal effects by fire is left out," maliciously." A man may do that ignorantly, may com­ at Fort Hamilton, New York Harbor, on the 3d of March, 1875, at a mit that offense without any malice, and yet be punished for it. He sum not to exceed $600 each. may go in under a misapprehension, ordered by the owner to go in Mr. WITHERS. I should. like to hear the report r~ad in that case. and tear down a pipe or alter some of the water-fixtures; and though Tile bill seems to contain a point that I think objectionable. the party so ordered may innocently do it, yet under the provisions Mr. SPENCER. There are two reports, a Senate report and a House of the bill, the word ''maliciously" being left out, he may be punished report. for it. The PRESIDENT pro tempore. The report of the committee will Mr. SPENCER. I move to amend by inserting the words "willfully be read. · and maliciously" to meet the objection. • The Secretary read the following report, submitted by Mr. SPEN­ The amendment was agreed to. CER, from the Committee on Military Affairs, January 18: Mr. 'VHYTE. Now I move that the bill be referred to the Commit­ It appears that a. fire originated from a defective fine in one of the casemates of tee on the Judiciary. It has been manifested now that it is not a Fort Hamilton, New York Harbor, March 3,1875: that owing to the necessity for proper bill to pass without fllir examination. I move that it be re­ the serrices of all the officers and men of the ~arrison in removing a large quantity ferred to the Committe on tilo Judiciary. of pow(ler from a casemate near the fire, all their private quarters in the casemates, and their effects therein, were neglected and allowed to he destroyed. Mr. DAWES. I hope that motion will prevail, I think if for no It seems to be just that these officers should be re-imbursed for their losses · but other reason, that the minimum of the penalty should be stricken this should not pass into precedent. so as te prevent Con ores.~ from decidin~ any out. I do not know what the policy of the law in the District of Co­ \ other analogous case entirely on its own merits. The co~mittee therefore recom. lumbia is; but it has come to be the policy in the States of late, and mend the passage of the accompanying House bill, (II. R. No. 2401.) a very wise policy, I think, that tbe minimum of such puuisilment The bill was reported to the Senate without amendment, ordered should be stricken out. I can conceive of the offense being com­ to a third reading, read the third time, and passed. mitted under circumstances that would make that minimum penaltv PROTECTION OF PROPERTY IN THE DISTRIOT. very severe. I hope, therefore, that the motion of the Senator from Maryland will prevail, and that among other things the minimum of Mr. SPENCER. I move that the Senate proceed to the considera­ the penalty will be stricken out. tion of the bill (H. R. No. 4041) to prevent depredations upon prop· erty in the District of Columbia. The PRESIDENT pro tempa1'e. It is moved to refer the bill to the Committee on tbe J udicia.ry. The motion was agreed to; and the Senate, ll.B in Committee of the Whole, proceeded to consider the bill. It provides that evory person The motion was agreed to. who, in the District of Columbia., shq.ll willfully a,:qd without color COUNTING OF THE ELECTORAL VOTES. of right enter into any occupied or uuoccupied dwelling-house or The PRESIDENT p1'o tempore. If there lle no further morning other building, the property of a,nothev, Q.:qd shall cut, break, or tear business the morning hour bas expired, and tbe Chair will call up the from its place any gas-pipe, w~ter-pipe, door.bell, or other fixture unfinished business, which is tbe bill (S. No. 1153) to providE' for ancl therein; or who shaU, .in &nch dwelling-house or other building, cut, regulate the counting of votes for President and Vice-President, and break, or tear down a:qy wall, or part of a wall, or door, with intent the decision of questions arising thereon, for tile term commencing to cu~, break, or tear from its place any pipe or tixture therein, shall, March 4, A. D. 1877. . l (j

820 CONGRESSIONAL RECORD-SENATE. JANUARY 23, f ' I Mr. SHERMAN. Mr. President, when the committee was appointed with a view to neutralize each ot.lter, an_d leave the whole responsi­ by both Houses to take into consideration the count of the electoral bility of this grave deci~ion to stand upon the other members of the vote, I expected as a matter of cmuse, in case that committee agreed, tribunal. To avoid any advantage the bill is so framed that e:wh to vote for its report. I have a high respect for the committee, for House will carefully watch the other until the commission is organ­ its members and its organization; and I sopposetl that any bill that ized. Until then the right is reserved to either House ta withdraw a it would be likely to agree upon aml report would receive my hearty member uutil the commission is organized, and then" hands off;'' it concurrence. And, sir1 is a painful t,hing to me to dissent from neither House has any power over the personnel of this commission. gentlemen whose opimou I esteem so highly; but, after the brief con­ The rest of the commission is to lJe composed of five judges to be sideration I have had an opportunity to give to this bill, it becomes selected in the manner I now read from the !Jill: my duty. On the 'l'uesday next 1)receding the first ThurRday in February, A. D. 1877, or as I appreciate the honorable motives which led them to make this re­ soon thereafter as may be, the associate justices of the Supremo Court of the Unit;. port, bnt it is equally my duty to act upon my judgment on there­ ed States now assigned to the first, third, eighth, and ninth circnits, shall select, sponsibilities of my position and to dissent from them if in my judg­ in such manner as a m~jority of them shall aeem tit, another· of the associate ju.s­ ment they have fallen into error. tices of said court, which five porsons sllall be members of said commission. I know that when there is a strong pressure, a patriotic motive for an Four of those judges are named. Their names might as well have a~reement in a committee of gentlemen who go over a subject of this been printed in this paper; but that is not material, because they are kmd, they may lose sight of objections which may influence the minds defined by circuits as now organized by law. The Senator from Ver­ of others. Therefore in dissent.ing and, as I shall, criticising the work mont, [Mr. EDMUNDS,] I believe, in his opening remarks, named of this committee, I must in the outset express for the committee, these persons. He also alluded to the fact that they were well dis­ their motives, and their purposes my sincere respect. tributed throughout the United ~tates, but it is plain upon the face The bill before us is a bill to decide a case. It is not a general law, of this bill that their ~eographical distribution had but little to do applicable to·an time and for all similar occasions. It is designed to with their selection. If members were to be selected to represent settle a case now made up and pending in your arcbins. Nor is it ~eographical districts, it is not possible that the great State of New a bill to confer jurisdiction on an existing court to decide cases to York and all that vast region lying between the Allegheny Mount­ arise. It is a bill to create a court to decide a case already made up. ains and the Mississippi River would be excluded from representa­ No one would propose this bill as a permaneut measure of legislation. tion. No, sir; one in New England, one iu Pennsylyania, one in Iowa, There are provisions in it that are incompatible with the conditions and one on the Pacific coast are selected by name rea,lly, so that of a permanent law; and therefore it is a bill to constitute a court there is nothing in this selection to represent geographical portions to try a cause already made up. It demands therefore the utmost of the conn try. They were selected for their political opinions, and scrutiny. Legislators in framing such a law must necessarily know this we must concede in the out.set. the facts and the legal principles involved in the case to be tried. The fifth controlling member is to be selected how f In such a I could quote you from elementary aut,hors to show you that such manner as the majority of the four shall deem fit. Shall it be by a. laws are of evil example, often resorted to in State Legislatures to vote f Shall it be by ballot f Shall it be by 1'iva voce? It may be . accomplish corrupt purposes for private ends. No such pretense is by either, or it may be by lot, by chance, by a game of cards, by a. claimed here; but the very nature of this bill compels n!i, in the exer­ throwing of the dice, by any of the forms of chance known to gam­ cise of our sworn duty, to examine it with care and scrutiny to ascer­ blers. We have introduced into this great commission, as the means tain whether or not the court that is created for this particular case of selectin~ the controlling memlJer-the fifteenth member-the ele­ can be justified by the general principles which govern our legislation. ment of blmd chance to decide this presidentia,l election. .. This case turns upon a few brief words in the Constitution. In Sir, there are some other features about this game tbat make it article 12 of the amendments to the Constitution are these words: very singular. From whom shall this umpire be chosen T In the The President of the Senate shall, in the presence of the Senate and House of first place the Chief-Justice is carefully excluded by the language of Representatives, open all the certificates, and the votes shall then be counted. the bill. I do not know why this should be so. No doubt the com­ mittee had good reasons for it, but I en and to First. That the Vice-President bas nothing to do with counting the represent au the power of one department of this Government, will be votes except to preside and to state questions; dragged into the political arena, their characters, their affinities, their Second. That one Honse cannot reject a Yote; associations, and their politics discussed and canvassed iu the public Third. That the two Houses by concurring votes may do so; press and in every cluster of political schemers. What will be the Fourt,h. That the grand commission organized by the bi1l shall effect f 'Vill not the profound respect with which we are wo~t tore­ decide all questions as to the vote of any State where there are two gard this high tribunal and each ,judge composing it be lowered, and retmns, and their decision shall be final unless overruled by the con­ this great conservative element of our system be weakened. It may currence of both Houses. be thati we must seize upon this horn of the altar, this sacred branch of I believe I have fairly stated these four propositions as contained our Government, to rescue ns from some great and perilous difficulty, in the bill. Now let us examine them in the reverse of the order in but it seems to me itonght to be reserved for such a contingency, and which they are mentioned: not be called in to count an electoral vote already cast, every paper First, as to the grand commi...-.sion. of which is in your urn and in your possession. It is compo ed of five members of the Senate and five members of Mr. President, it must be remembered tha,t this tribunal is not or­ the House carefully organized so as to neutralize each other. It wa~ ganized under the judicial clauses of the Constitution. There is no known hy this committee that one House was of one party, and the trouble in organizing a court under the judicial authority to try this other House of the other; and, although it is not plainly printed on very case. Article 3 provides that- the face of the bill, yet I suppose every member of the committee will assent to it, that 1hey looked to it that the commission so far The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and estab­ as members of the Senate and Honse are concerned would be com­ lish. posed of an eC]ual number from each political part.y: three democrats * in tho Honse, anu two republicans; three republicans in the Sen::tte, The jmlicial power shall extend to all cases in law and equity, arisin~ under this and two democrats. There is no provision of t.bat kind, and yet it Constitution, the laws of the United States, and treaties matle, or which shall be would be the natural inference from the ordinary mode of organizing macle, Ullder their authority. committees; so that the members on the part of the House and the It is not pretended that this court is organized under this article Senate neutralize each other. They are opposed to each other by of the Constitution, because if the court was so organized there would political instincts in deciding questions involved in a political elec­ be no question that their appointment must. be made by the Presi­ tion. I do not say that they may not 1·ise alJove all their party pre­ deut of tbe United States. A new tribunal may be made by Con­ dilections and decide according to the law; but they are so organized gref5S to try this very c~. Tested by the judiciary article t))is tri-

J 1877. CONGRESSIONAL RECORD-SENATE. 821 bunal would be plainly unconstitutional, but it is organized under the is a duty to be performed under the twelfth article of amendments, general authority of Congress to paSt; laws necessary to carry into not of a judicial character. They are here appointed as officers to execution any of the powers granted by the Constitution. It is .based, perform a ministerial duty. When thus appointed they must be ap­ by the Senator from Vermont, LMr. Emtu~ns,] upon that res1dnary pointed by the .Pre ident and confirmed -.y the Senate. The judges clause which enables Congress to provide machinery to carry into of the Supreme Court in this commission are not acting as a court, execution existing powers. The Supreme Court is thus divided and are not constituted under existing law. They are men composing a it.s judicial duties post.poned not to perform other judicial acts but to new tribunal. They can only be appointed to such commission by share in a political act-that of counting in the prese:cce of the Sen­ tbe President, and by and with the auvice and consent of the Senate. ate and House of Represent.uti ve~:~ the electoral votes. This commis­ If on the other hand it js claimed that this function is an inferior sion is organized, not as a judicial court under the judicial power, office, or a tempo:ary office or the like andmayfall within the power but as a political trihunal to witness a count, and to do whatever is of appointment by the courts of law or the heads of Departments, necessary as a witness to that com1t. · the bill is equally unconstitutional, because this bill makes no pro­ Mr. President, the origin of this bill, 8.{} bras I can find in the rec­ vision whatever for their appointment by the head of a Department, ords, is justly and properly traceable to my friend from Vermont. In or by a court of law. It is not the Supreme Court that selects this one of the debates that occurred a year or two ago he shadowed this tribunal of five. Perhaps if they were regarded in the light of infe. very proposition, but then the Supreme Court was not brought into rior officers, the power to appoint and select them might be conferred t.he scheme. I find in debate that the Senator from Vermont ()Spe­ upon the court itself; but this power is not conferred upon the court. cially pointed out ver.v clearly on a former occasion that a case might Four of them are taken by name and the fifth one is taken practi­ be made on a clisputed presidential election to be carried first to the cally by lot, and the court as a court have no part or lot in the selec- circuit court of the United States and then, by appeal, to the Su­ tio~ · preme Court of the United States. No doubt that could be done. Now, as to what is an officer and as to whether these gentlemen Any person claiming to have been elected to the office of President, or when they take upon themselve:s the performance of this duty are an.v other office, might in the ordinary assertion of his right by judi­ officers, the committee no doubt have made up their min

These men thus required to perform comparatively unimportant which is transferred for a moment only to our committee, and which dnties in the State of Ohio under the constitution of that Srate, may be withdrawn at any time-for at any moment a motion can be which denied to the General Assembly the power to appoint au officer made to withdraw any subject from any committee or to disband the no more strongly than the power is denied to the Congress of the committee and disorganize it. They are our Cl'E>.atures; but when we United States, it was held were officers, and could not be appointed create this commission by law we delegate all our powers, whatever except in tlle way provided by the constitution of the State. the.v are, over the electoral vote as the Senate of the Uuited States Now these judges are to exercise the very highest functions of to these five men, aud those powers cannot be withdrawn. It may office: they are to make a President. J udg.ed by the ordinary motives be that this power will not be abused; but if it is we stand helpless that rule and govern mankind, the fifteenth man has tile power to in the presence of our own creation unless the House will concur in make a P1·esident, if he will use the powers conferred on him by one a remedy. construction of this bill. I say that under these circumstances the Now, sir, I say it is against the spirit aud policy of the Constitu­ members of this- commission are officers under the law and the Consti­ tion to thus by our own law create such enormous powers and enor­ tution, and before they can be called upon to exercise tlleir official mous duties, and invest them in our own mem hers, placing them be- · functions they must be appointed in the mode prescribed by the yond our control; and it is an implied violation of that provision of Constitution. · . · the Constitution which prohibits a from holding But, sir, this bill is objectionable in another respect. It undertakes any office or being appointed to any office the salary of which has to dt>legate a power conferred upon Congress or upon either House to been raised during his term of service, or which has been created dur­ a commission. Its members are to take an oath in a prescribed form ing his term. and cannot. be disturbed by Congress or by either branch during the Mr. President, I said yesterday that the judicial fea.ture of this bill existence of the commission. They are to exercise tbe same powers was novel. My honorable friend from Vermont, to whom I always posSt>ssed by either House, which include the power to send for per­ defer as being ve1·y accurate, took issue with me at once. I wilhead sons and papers, to examine witnesses, and administer oaths. Their what occurred between us yesterday: judgment is final unless reversed by tl1e concunent action of both Mr. En:umms. My honorable friend from Ohio made use of one expression in Houses. This is a plain attempt by Congress to delegate its powers. which I think he did not display his usual accuracy. He said that this bill was Sir, it is an axiom of the law tllat legisla.tive powers cannot be dele­ perfectly novel in its character. Mr. SHERMAN. In several of its provisions, I meant. gated. This general principle is htid down in Gooley's Constitutional Mr. EDMUNDS. It is only seventy-six years, as my friend from Ohio must well Limitations, from which I will read a single extract: recollect as well as I do, that a bill involving exactly these principles passed the One of the settled maxims in constitutional law is that the power eonferred upon Senate of the Unired Stares, which provided that disputes of this characte•· should the Legislature to make laws cannot be delegated by tbat department to any other be decided preliminarily, and I believe I may say finally-which goes much further body or authority. Where the sovereign power of the State has located the author­ than this bill does-by a body of men not composed entirely of the members of t-he ity, there it must remain; and by the constitutional agency alone the laws must two Houses. he made until the constitution i•self is changed. The power to whose judgment~ wisdom, and patriot1sm this high prerogative ha..'! been intrusted cannot relieve Here my friend-and I did not contra-dict him at the moment, itself of the responsibility by choosing other a~encies upon which tbe powers shall although I felt quite sure he was wrong-said that the Senate of the l1e de,olved, nor can it substitute the judl!ment, wisdom, and patriotism of any United States had once passed a bill that allowed members of the other body for those to which alone the people have seen fit to confide this sovereign Supreme Court to participate in such a commission. I turned to the trust. record and I found that he was mistaken. It is true that a commit­ And in a note I find these general principles laid down: tee recommended the pa-ssage of such a bill, but that feature was These are the bounds which the trust that is put in them by the society, and the stricken out in the Senate and never proposed again and never beard law of God and nature, have set to the le~slative power of every commonwealth, of again iu the House and abandoned. The whole history of this is in all forms of government: First. They are to govern by promula;ared established Jaw!!, not to be varied in contained in the book I have before me. I have the bill a-s it was re­ particular cases, bnt to have one rule for rich and poor, for the favorite at court ported from t.he committee. Section 1 provides- and the countryman at plow. It shall be the duty of the Senate and House of Represent-atives of the United And yet tllis bill violates the first fundamental principle, which Smtes t-o choose, by ballot, in each House, six members thereof, and the twelve persons thus chosen, together with the Chief-Justice of the United States, or if he limits legislative power. Thh~ law does apply to a case past, con­ is absent from the seat of Government, or unable to atteml, then with the next cluded, euded, and now a special law is to be made to try that par­ senior judge of the Supreme Court of the United States who is present and able to ticular case by a special tribunal. I will read another passage: attend, shall form a. grand committee, and sh_all have power to examine. and fioally Fourthly. The legislative neither must nor can transfer the power of making to decide, all disputes relating to the election of President and Vice-President of laws t-o anybody else, or place it anywhere but where the people have.-Locke on the United States. Oiuil Government, section 142. That was the grand committee then proposed by the Senate com­ That legislative power cannot be delegated a large number of cases mittee, but the Senate struck out that feature which mingled the are quoted to show, and it is a familia,r principle of law. If legis­ the Chief-Justice or one of the justices with this tribunal, and the lative power or the power to make laws cannot be delegated by bill as it passed the Senate contained these words: either House of Congress, how can this power, which they cJaim It shall be the duty of the Senate and House of Representatives to choose, by ballot, in each House, six members tbeTeof. The Senate, immediat-ely after this gives them the authority to reject the vote of States, gives them choice, shall nominate, b:v ballot, three of its members, and transmit their names· to the control over a presidential election, be del~gated T This power, the House of Representatives, who shall, by ballot, choose one of the three. and the it is true, is merely a power drawn by inference from the duty to be thirteen persons thus chosen shall form a g:rand committee, and shall have power to present at a count ; but however conferred, if it exists at all, it can­ examine and finally to decide disJ;>utes relative to election of President and Vice· not be delegated. Sir, if there is slumbering in these few words "in President of the United States as lS hereinafter limited and prescribed. the presence of the Senate and House of Representatives" this enor­ So that the Senat-e there, at the very foundation of our Govern­ mous power to undo the work of the States ·and the people, and to ment, in 1800, seventy-six years ago, when this proposition was made reYise and reverse their decision in the election of electors, then by a committee, struck it out, and the bill went to the House, and no surely this power cannot be delegated to a packed tribunal. ' man in the House proposed to restore it. The House it is true adopted There is another feature of this bill which seems to violate the a different plan; they reduced the number of the committee andre­ Cqnstitution, certainly to violate the spirit of it. The members of fused to allow the S6Date to designate the presiding officer, but left the Senate who are taken to form a part of this commission are not the committee eight, giving each Hous~ an equal number, thus le:w­ merely our instruments to inquire for us at our pleasure and our will, ing them to choose their own presiding officer; so that it is entirely to be discharged at any moment; they are not merely our instru­ novel in our whole history to introduce the Supreme Court into this ments, our agents, to take depositions and to examine bills, and to wholly political machine. My friend was in error, therefore, when 1·eport t,o us amendments; but this bill ma,kes them officers inde­ he said the bill as reported passed the Senate, for in thls particular-it pendent for the time bein~, while they are discharging their public was amended and changed. uuty, of either House of .,;ongress. Mr. President, it is well known from the history of that bill that it Article 1, section 6, clause 2, of the Constitution provides that no fell by a difference on amendments between the two Honses. The Senator or Representative shall, during the time for which he was question of the Chief-Justice was eliminated from it by the Senate, elected, bo appointed to any civil office which has been created during and never subsequently was brought into controversy. There were t!nch time. Here is an official trust of the highest character, not to other controversies between the two Houses, and the bill fell. This he likened to an ordinary committee of this body, conferred upon was followed by the great bi~torical event, when a portion of the members of this Congress. It is a commission uniting three branches people of the United States endeavored to thwart the will of the people of the Government, the Senatet the IIouse of Representatives, and in the election of Thomas Jefferson as President of the United States. the Supreme Court, having t-he power to decide and not to be OVtlr­ By a provision of the Constitution as it then stood, the President and ruled by either House. They cannot be overruled by their own House. Vice-President were both voted for without designating which was The Senators to whom we delegate this power have our power beyond to be President. The friends of Burr took advantage of that, well our control. They are :QOt om: agents any longer; they are our su­ knowing that tbe people intended Jefferson to be President and. Burr periors until thls work is ended. I say they cannot be delegated to to be Vice-President, to try and make Burr Presiuent, and thus thwart perform this enormous trust when that very trust ha-s been created the popular will. That was defeated; but the very conspiracy to by the Congress of which they are still members and by their votes which Burr lent himself led to the tragic fate which darkeneu a most and participation. brilliant life; and that name whlch in revolutionary history was hofi­ If the appointment to such an office created during the term for ored,_which in the early history of our country was among the most which these members were elected does not fall within the strict pro­ brilli:p:tt, was stricken from the roll of honor, and now is mentioned hibition of the Constitution, it certainly falls withln the spirit of it. only second in infamy to that of Arnold. This controversy was the Th0 duty they are called on to perform is not the mere ordinary duty beginning of his downfall. Mark what followed. As soon as this 1877. CONGRESSIONAL RE.CORD-HOUSE. 823 controversy was ended by the election of Jefferson, at once they com­ Mr. President, suppose these judges should refuse to perform their menced to agitate a change in the Const.itution so as to cure thiM defect duty, how could yon compel them 1 I do not say that men so emi­ in the original dran~ht and to require the people to designate whom Hent as t.heywould refuse t.o comply with any request made by the they wanted as Pre~:~ident and whom as Vice-President. Remember, Senate and House of Representatives; but yon are dealing with par­ at this time the debate was fresh in the minds of all in which .Mr. ties over whom you have no control. You appoint them to a trouble­ Pinckney made his famous speech from which I will hereafter read some and painful duty without defining exactly their powers. What a portion. In this controversy the provision of the original Consti­ if they should decline T Then your scheme is at an end. tution for the election of a President, every word of it, wa-s mudeti.Je But, sir, suppose the commission organized and in full operation, subject of debate; and in 1803 after the election was over a proposi­ what are they to doT When .Florida is reached will they take the tion was made in Congress to change the Constitution and after full formal, official paper of Governor Stearns and the vote of the repub­ consideration was adopted, and the twelfth amendment was passed lican electors certified by him, or will they find out what the last de­ and ratified by the States. cision of the last court in :Florida held, or will they open the budget Was there any change then made in that provision which provided of my friend from California, [Mr. SARGENT,] who comes back here the mode of counting the vote f They changed the mode of desig­ with ever so many volumes of testimony not yet printed T What are nating the officer, but the same language m the old provision for these men to do T No one can tell. What will they do in the case of counting the vote was carried into the new, and the words are in the Louisiana T Will they tako the certified returns of Mr. Kellogg, who new as in the old, that the presidinji officer shall open the papers and has been acknowedged now for years to be the governor of that Stat-e, in the presence of the Senate and .tlonse of Representative the vote and of the electors certified by him to have been elected according to shall be counted. If they thought that there was any danger lurk­ the returns of the returning officers, and take that vote as final and ing in these few simple words, would they not have provided against conclusive, or will they open up the whole case and examine into the it f Surely they would; and if they wanted to graft into our body-pol­ bull-dozed parishes to see whether or not the returning officers exer­ itic the system of combining the Senate and House and Supreme Court cised their duty fairly f If so, you would have to call my friend from into a grand high commission, as proposed three yea-rs before, do you Missouri [Mr. BOGY} and myself-it seems we differ in opinion-and not suppose they \vould have said so by fit words when proposing this then you will have to call my friend from Wisconsin, [Mr. HowE,] just twelfth amendment, only three years after the proposition was made f returned from a more careful and critical examination, with two or They were content with it a-s it was. And there the words stood; three or four volumes of unprinted testimouy. What are yon to dot there they have stood to this day; and now the attempt is made to Is t.beir jurisdiction Jimited or defined T Let us look at the bill. Here change all this, to seize the occasion of a close vote to manufacture a is this jurisdiction of this tribunal: · court to try a case already made, to change the old and simple habit Which shall proceed to consider the same with the same powers, if any, now pos­ of our fathers, under words twico repeated in the Constitution, re­ sess~ for that purpo~e by the two Houses actin_g separately or together, and by a adopted after fourteen years of trial, and acted on from that day to majonty of votes decide whether any and what votes from such State aretbevotes provided for by the Constitution of the Unitoo States, and how many and what this by the common consent of all. And, sir, so it stood until the persons were duly appointed electors in such State, and may therein take into view fat.al troubles which grew out of our civil war. In 1865, when the such petitions, depositions, and ·otLer papers, if any, as shall, by t.he Constitution condition of some of the Southern States was still uncertain and it and now existing law, be competent and pertinent in such consideration. was still disputed whether they had been restored to their old rela­ Here you not only give them the right to do anything that either tions in the Union, theu it was that Congress, without consideration, House may do; you invest them with all the powers which Congress upon the report of the Judiciary Committee, without debat-e, a,(}opted can give them, and then yon leave them to decide whether they will the twenty-second joint rule, which we have finally got rid of, thank exercise any of these powers, or whether Congress can exercise any God. of these powers, and there is no appeal to either House from their Mr. President, I do not know, perhaps my friend from Vermont can decision. I want t.o know what is the construction this committee tell me, wllether since 1800, when the Senate struck out the provision put upon the powers of the commission T Are they confined to the about the Chief-Justine, any proposition bas been pending in either legal returns f Are they bound to take the votes of the electors as House to min£1e the Supreme Court with the electoral count. certified by the legal officers of these States f If not, the question Mr. EDMUNDS. .M:ay I ask the Senator if he did not vote ten is open. Why did not this committee in their report tell us what is months ago himself exactly for that proposition, to ma.Ke the Chief­ their construction of this law T The grand commission are not only Justice one of the commission f residuary legatees, but. they are sole legatees, and they are sole judges Mr. SHERMAN. I do not remember. · of the extent of the bequest. My friend from New Jersey [Mr. FRE­ Mr. EDMUNDS. He had bett.er look at the record and see if he did. LINGHUYSEN] made a very good speech yesterday. And, if that is Mr. SHERMAN. Will my friend point it ont f In my jndgment it the do.ctrine upon which this board are t.o act, I might be converted was wrong if I did. I will here say to my honorable friend that if perhaps, although I think not. nut what does my colleague [Mr. he will look over that book-it i1:1 a thing I very rarely do to quote THUR:\1AN] say f What does the honorable Senator from Delaware the opinions of members ih former debates-he will find that probably [Mr. BAYARD] sayf What is their opinion of the powers and extent other people have changed their opinions as well as myself on impor­ of the powers of this commission f ·when I hear them, perhap1:1 I can tant questions, as we sometimes do, and as I think a wise man often tell better. I once had charge of a bill where the friends of it did does. not agree upon the meaning of a certain provision; but the court-s Mr. EDMUNDS. I hope my honorable friend will pardon me for were open in that case to decide it. But now the courts, and we our­ the interruption. I did not mean to accuse him of any inconsistency; selvE>s, are foreclosed. That was denounced as a sham, a fraud, a but he said be had not known of the bringing in of the judicial branch cheat, simply because the friends of the measure could not tell ex­ at all since that time; and in order to correct the history of it I merely actly what construction to put upon it, or what construction the wished to call his attentior.. to that important circumstance. courts would put upon it. If that was a sham, what is this, when Mr. SHERMAN. I have no objection to the interruption. I am not the question of these powers and the nature of the powers and the as familiar with the votes on this question as my friend from Ver­ construction of the law is to be referred to a committee composed of mont, and therefore when I said I did not know of any proposition three different and somewhat antagonistic elements f to renew the mingling of the Chief-Justice with this court I turned Why, sir, are we to vote for this as a mode of counting the votes • to my friend on my right [Mr. MORTON] to inquire if any was made, of States according to the laws of the States, or are we to vote for it as and my friend informed me that I was mistaken, and therefore I am. a scheme to permit the fifteenth member selected by lot to choose a My colleague says I did not vote for it. So I was right, but if I am President of the United States f Because that is it. If thev count on trial I will rt)fer"that case to the joint commission. [Laughter.] according to t.he legal vote reiurnoo, every man knows who is~elected There is another notable thing, that when my friend from Vermont President without the appointment of this commission. If they are first gave birth here to this idea of a grand commission, which he said allowed to open the returns and ~o back of them and to inquire into was drawn from the practice in his own State, he did not then pro­ the testimony of what occurred m the three or four disputed States, l)OSe to incorporate the Supreme Court or any part of it in his grand God only knows what will be the result. It will depend upon the high commission. He said-! am not prepared to give dates; the die, the chance, the lot that will be cast when the fi.fthj ndge is named book is not so printed that I can-- by his four associates. Sir, I do not believe we ought to vote for Mr. ALLISON. Eighteen hundred and seventy-three, I gness. such a proposition. The committee have agreed upon the words of Mr. SHERMAN. Probably it was. It is page 482 of this compila­ this bill, and I commend their agreement. They have labored faith­ tion: fully and honestly, actuated by high motives and patriotic motives That is, on each occasion of a. presidential el('.etion the appointment of a commit­ no doubt; but they have not agreed on the meaning of the bill. tee to be named in eMh House, to be, if you please, equal in number, who should Mr. THURMAN. Why do you say that f form a single and consolidated committee, the members of which,_ t.bus selected Mr. SHERMAN. Because I say you have referred to this tribunal and appointed, would presumablv be among the purest and best ana most skillful the whole question. in la.w and in politics of the mem't ~rs of the two.Honses; that that body of people should be sworn to take the returns when they are opened bv t.he Vice-President Mr. THURMAN. Then the meaning of the bill is clear. of the United States and canvass them, canvass them under the sanction of the Mr. SHERMAN. Can you tell me how they will decide t Constitution and the law; that they should apply to them the same impartial con­ Mr. THURMAN. No. If I could, I should not vote for the bill. siderations that they would be bound to apply to them had the Constitution de­ clared that those eight persons should form a. court who should finaJly determine Mr. SHERMAN. That shows that my criticism of this bill is per- every question. fectly correct. My colleague, no doubt, in construing the extent of the powers conferred on this commission, will g-ive one view of it and He here develops the very idea that is contained in this bill. But my friend from New Jersey give the other. Perhaps if we could hear there was no provision then for taking one-half of the Supreme Court all these gentlemen tell us the inside meaning of these myst.erious of the United States to decide between two political bodies. phrases, this jurisdictional clause, we might know how to vote better. 824 CONGRESSIONAL RECORD-SENATE. J.ANU.ARY 23,

Mr. THURMAN. Will my colleague allow me a moment T substitute an unnamed man to be selected by lot, to have all his Mr. SBERhlAN. Yes, sir. powers an,d all the powers of the Senate and House combined. You Mr. THURMAN. Does he mean that the Senator from New Jersey fear the power of one man who has to perform a duty in the open and I aro in antagonism on the point on which we are really not an­ day with ev£~ry gaze upon him, nuder the solemnit.y of an oath as L::lgonistiu f However much antagonism there might be between as, sacred as these men take, in the presence of the Senate and t.he House if we had ··be decision of this case or if we were so unfortunate as to and the assembled galleries. Every act that be does is watched with be ruembers of this commission, the Senator from New Jersey and scrutinizing eye. You will not allow one man that power to open every member of this committee will tell my colleague that this bill and count this vote in your presence, but yon will select an unseen sends to that commission the decision of the questions of law as well tribunal, the governing power of which is selected ·by chance, to do as of fact, and there is no obscurity in the bill. How they will de­ this same deed in secret conclave. Yon select a college of caroinals ci

That Congress shall be in ~ession 1t * * and the said certificates, or so many of do a greater thing-the greater contains the less, not the less the them as shall have been received, shall then be opened, the votes counted, and tk greater. Power to do an act of one species or na.ture, does not work persons w:to shall fi 'l the o_f!L'!eS of President and Vice-President ascertained and de- by implication power to do a separate act of a different species or na­ clared, agreeably to the Constitution. • ture, partinularly an act of more exalted nature, not essential to the The Constitution names five instances m which no majority of votes act expressly authorized. Power to do a ministerial act does not imply shall work the ascertainment to fill the office of President of the power to act j ndicially. Authority to act as custodian of papers, does United States. Wa.s it designed that votes cast for one dead should not confer license to exercise transcendent powers of sovereignty, or be counted, and that he should fill with an aching void the office of of supreme ultimate political and public determination. Express au­ President of the United States f Would that be " agreeable" to the thority to do a given thing never implies power to do anything what­ Constitution f Was it designed that votes forged should be counted; ever after the act authorized is completely done and ended. The votes, not certified or certified by an usurper, counted blindly and certifica.tes must be opened before their contents can be examined or without inquiry t Was it designed, if lying on onr table be a record passed upon-they must be opened before counting their coptents can denouncing a,Rainst a cvnvict on impeachment perpetual exclusion begin: how then can power to judge and ascertain afterward, be from every omce of profit, emolument, or trust, that votes cast for inferred from power to produce and open beforehand f How can the him should be counted and made effectual, and this, because although latter be incident to the former T Breaking the seals is merely pre­ not good, such votes might be "bad or indifferent f" No, :Mr. Presi­ fatory to a wholly different proceeding. dent. Should t.he State of Massachusetts send here an electoral cer­ A clerk of a court, or the presidio~ justice, is made the recipient and tificate ou which should appear as the first two electors the names of custodian of papers-he is to keep them untouched and sealed till a my honored friends the Senators from Massachusetts, and if then certain day, and then he is to carry them into court and open them. should follow as electors the name of every Representative from Would a statute declaring that the papers shoulcl then be acted on, Massachusetts, designating them respectively as Senators and Repre­ or hould then undergo examination, or that facts of which they were sentatives, I should read in the Constitution that ''no Senator or evidential should then be found,mean tha.t the clerk, ortbe one justice, Representative" shall be or shall even be ''appointed an elect.Qr," and not the court, wa.s to act on the papers, or pass upon them, or find and I should say those votes, although they might be "bad" or "in­ the facts from them, and would his power to do any or all of these different," were not to be helu goou until they were at least con­ things be implied from the fact of his being the custodian of the sidered. ·"Agreeably to the Constitution" some heed must be given to packet f its plain ancl absolute prohibitions, and "bad" votes, that is to say for­ If, in the instance supposed, the sheriff were the custodian, anrl the bidden votes, are not of course or by main force to be counted as if contents of the packet were warrants and summons, and the statute they were" good" vote , which is to say legal and constitutional votes. declared that these writs should then be served, how should we know· But, it bas been said that the power of the President of the Senate, who was to serve them T The appropriateness of the sheriff for such though not expressed in the Constitution, may be implied from that a purpose would suggest him as the proper person, but this is not which is expressed. It hns been whispered that the President of the all. We should know it was the sheriff who should act, because the Senate ma.y, in a closet or a corner, a month in advance, adjudge, deter­ law declares that the sheriff shall serve all such writs. mine, and conclude the electoral count by refusing to receive any cer­ Bnt in the case snpposed if the statute said" and the validity and tificate except that which he chooses in the end to count. That is, he effect of the writs shall then be passed upon," should we infer that may decide that he will receive two certificates from Oregon, that tb'31:lberiff was to pass upon them, and this because the law made him beiug a large if not a. populous Stato, but that one each must suffice for their custodian f We should know the court was to do this, merely all the other States, and so be wonld take but one. The existing Presi­ because the function is judicial and the court is a judicial body aud deut of the Senate, dit'chargiug as be habitually does, with conscience so authorized by law. and propriety, the duties resting on him, has already, I am informed, Apply the rule to the matter before us. \Ve know too well theua­ received contesting certificates from the three or four States from ture of the possible inquiries involved. Committees have gone far which they come. I have beard no one say aloud that having received and wide to conduct them. My distinguished friend from Wisconsin them, it will be his dut.y or prerogative to suppress or conceal any of [l\lr. HowE] has pained us by his absence for weeks, because deputed thorn; and therefore I proceed to consider whether by implication he by the Senate to tarry in a distant State. Many other Senators have bas the power to judge between tlJem, to determine what shall be­ done the like. The framers of tile Constitution knew and pondered come of them, and what is their legal import and quality. the sort of problems which might arise for solution: they have left The doctrine of implication stretched to cover the ground here in­ us evidence that they were not unmindful of some of tho questions volved, may be sa1tl to derive implication from implication, or rather which now confront us. to :, raft implication on implica.tion. The argnrnent seems to be first, My inquiry at this point is whether the President of the Senate is that because the President of the Senate is the custodian of the cer­ so equipped for settling disputed questions of fact, is so endowed with titicat,cs and directed to open them, it ma.y be implied that he ha.s facilities for resolving problems like these, ·that reason and inten

The person having the largest number of votes, of valid, legal What was the difficulty¥ Was there any doubt that the electors votes, ue it a majority, is to be the President. The question is, who were appointed Y No, sir. Was there objection to their election t "shaH fill the office of President Y" The Constitution has named, as I No, sir. Was not Georgia ~State in the Union f Had not every pro­ said, at least five cases in which, although a majority of votes be given priety and mandate been ob'served ¥ Yes, sir. . But a Representative for n, candidat~, he shall not fill the office of President. No person from the State of Mazsachusetts rose in the meeting of the two Houses shall fill the office of President unless he be a native-born citizen; no and said: person shaH fill the office of President unless he has attained the age I object to the count of those voles ; I object because it is announced that Mr. of five and thirty years; no person shall fill the office of i>residen~ Greeley was buried on the day on which those votes were cast. unless he has been fourteen years a resident of the country; no per­ Let me be more explicit with the Senate in stating the process of son shall fill the office of President chosen by the votes of electors the member who made the objection. Legally dissected, his state­ in the State wherein he resides who voted also for another person in ment was this: "The certi:ticate is blameless on its face; there is a the same St.ate for Vice-President; no person shall fill the office of State behind it; these four men were legal electors; but the news­ President who, having been impeached by the grand inquest of the papers have announced that Mr. Greeley was buried on the day the nation, has been branded by the votes of two-thirds of this body and vctes were cast: nobody has said he was buried alive, therefore it immutably disqualified. The certificates may be forgeries, the pre­ may be concluded, and the Houses may act upon it as a fact, that Mr. tended electors may not be the true electors, he who assumes as gov­ Greeley was not alive when the ballots were given." The two Houses ernor to certify the electors may not bo the governor at all. separated. In this House, the honorable Senator from Vermont [Mr. These and other questions may arise; still higher and larger ques­ EDMUNDS] proposed a resolution declaring that these four votes tions may arise. Has the President of the Senate power to send for should not be counted. The Senator from Ohio before me [Mr. THUR­ persons and papers; to compel the surrender of telegrams, and im­ MAN] :noved to amend by striking out the word the opinion that Joint meetings of two legislative houses had long been common. counting any votes, in any sense within the power of the two Houses, It had been customary for the Lorrrow by the change of a single vote. Thus far I have been indicating my own reasomng on the words Do reason, and the fitness of things suggest that our fathers meant employed. Let me now ascend to better reasoning. Let us inquire the President of the Senate should be the one man, even if there what bas been done by illustrious men, sworn as we are sworn, to ex­ were to be one man, to decide whether alleged irregularity or fraud ecute the Constitution. Let us survey the action of all the genera­ should vitiate the vote of a State, and turn the scale in the choice of tions, and parties, and officials, who bave proceeded under articlel2, and Chief Magistrate of the Republic 7 Is such power so suited to one also the action going before the Constitution and setting it in motion. man, rather than to the American people in Congress assembled, that Reference has often been made to a resolution adopted by the con­ wisdom will extract it from words which drop him and turn away stitutional convention in 1787. It has been cited as if it defined or from him f The Constitution, speaking to you, Mr. President, com­ constmed the power we now consider. On the 17th of September, mands you in the presence of the States and of the people to produce 1787, the constitutional convention adopted two resolutions. They and open all the certificates, and at that moment it turns its back on were transmitted to the Congress of the Confederation. The Congress you. Will reason from such words, even if they be doubtful words, a few days afterward, on the 28th of September, accepted the report extract such transcendent prerogative, and repose it with him who is without acting upon it otherwise. These accompanying documents, likely to sit as the sole judge in his own case f and others, were sent to tho States with the Constitution, and the Con­ Six times already, has the President of the Senate been one of the stitution was propounded to be ratifiecl or rejected. One resolution presidential candidates for or against whom the count was to be recommended that the Senate should appoint a President for the sole made. Was this not foreseen by the framers of the Constitution T purpose of opening and counting the electoral votes. Some observa­ 'fhe very men who drafted it proceeded in seven years to make the tions may be made on this resolution in addition to those which fell President of the Senate their own successful presidential candidate. from the Senator from Vermont. And so, we are asked to believe that our fathers intended to make one In the first place the whole proceeding antedated the Constitution; individual ihesole judge in his own case, though divine law and civi­ it was before it was ratified; it was before it was proposed. Geolo­ lized jurisprudence had declared since the morning of time that no gists would say it was prehistoric. It was a prefatory, or provis­ man should ever be judge in his own case, not even if other judges ional proceeding. In the language of the resolution, "proceedings sat with him. In 1800 the authors of the Constitution, creating a were to be commenced under the said Constitution." The ship was committee of fifteen to do what the commission now proposed is to to be launched, and the launch might be by the sails or the machin­ do, provided jealously that no candidate, and no man of kin to a can­ ery of the vessel, or by extemal and imparted force. It might be, diclate should be of the committee. The other day we had under con­ as the French would say, by an impulsion; and those who made the sideratiOn a constitutional amendment committing to nine judges launch chose so to make it. The resolution dicl not profess to define holding their commissions for life, and as independent of parties and or construe any clause in the Constitution. It merely designated an factions as is the monarch of the skies, the count of presidential votes, occasion, and referred to the objects of that occasion. It did not even and it was there bluntly provided that not one of them should ever profess to conform to the modes which the Constitution would bring be eligible as a presidential candidate until after the lapse of years. in. The Constitution directell that the electors should send their cer­ 'l'his is the modern standard of safeguard against self-interest. Yet tificates to the PTesident of the Senate. This res11lution suggested we are asked to believe that our fathers, trained meu, the victims of that they should be sent to the Secretary of the United States. Who abuse~ under other systems, and profoundly jealous as their words was he f He was the Clerk of the old . They and acts show they were of the weakness the ambition and the greed had but one House and hacl a clerk, and this was the man. The res­ of man, deposited absolute power with a single individual to decide olution did not eYen propose that the counting should take place in for himself and for the nation wh~ther he should mount the highest the presence of the two Houses. pinnacle of American if not of human ambition. They imposed no How did the Senate Tegard the action thus suggested. disability, or even interval of probation, on this onejud~e, but straight­ George Washington bad been unanimouslychos~n President. Every way they made him the party also with their own nands! Such a elector h!!.d voted for him. The electors themselves bud been ap­ judge we are invited to believe, they so intrenched, that in the pres­ pointed with unanimity. Everybody from the beginning knew it ence of the whole nation, because in law every State and every citizen would be so ; it was matter of c.ourse. John Adams had been over­ is present, he might by fraud or error undo the nation's will and the whelmingly elected Vice-Presiqent. To ascertain, the election, was a nation's right, and the nation must bow mute and helpless before wrong substantial and solemn proceeding, only as it is substantial and solemn and usurpation. The courts of New Jersey, in accord with courts the for the Secretary of State to announce the Fourth of July, or a holi­ world over, have lately said that no act of legislation can make a man day. judge in his own case, whether he sits alone or with other judges. '.fbe time "to commence proceedings," according to the suggestion But we are warned that if the Houses have this power, they may of the resolution, was March 4, 1789. Ten States had ratified the Con­ baffie a conn t. They m!'1y throw out one State and another State un­ stit.ution. A quorum of the Senate was 11. No quorum came to the til no majority of all the electors appointed remains. No doubt this seat of Government till April 6. Then no Senator was sworn in; it is possible. Every page of the Constitution presents instances in was January 3, 1790, before the oath of office was taken. Till then, which the two Houses, or one House alone, may defeat the Govern­ there was no Sena,te and no Senator, but only Senators-elect. Ten ment. One House may refuse to pass appropriation bills, or tax hills, months before they were sworn in as Senators, and on the 6th of Ol' army bills in war. The Stat~s.may refuse~ appoint electors or may April~ 1789, eleven of those who afterward became Senators, proceeded t-3:30 CONGRESSIONAL RECORD-SENATE. J.ANU.ARY 23, to start the Government,andimpart life and motion to the Const.itu­ A committee was appointed to prepare the certificates of election. tiun. One of the committee was Mr. Ellsworth and he had sat in the con­ They pa sed an order. Here it is: stitutional convention. The committee drew the certificate, and every Ordered, That Mr. Ellsworth inform the HouseofRepresenta.tives thata quorum of word of it, and the President of the Senate was directed to sign it, i he t:uat e is fo merl; that a President is elected for tl.te sole purpose of opening the cer­ and he dirl sign it. He signed it not of his own motion, or because tiicatt> s :rnd counting the votes of the electors of the several States in the choice of a P 1·(•sident and Vic t3- President of the United States; and that the Senate is now authorized by the. Constitution, but by the command of the Senate r endy, in tho Senate Chamber, to proceed in the presence of the House to discharge speaking for both Houses, and he signed it as the organ and mouth­ tbaLdu t ~ · ; 11 ml that the Senate have appointed one of their members to sit at the piece of the two Houses. Cl erk's table to make a list of the votes as they shall be declared; submitting it to The certificate recites that he who signed it had counted the votes. the wistlom of the House to appoint one or more of their members for the like pur­ pose-who reported that he had delivered the message. No doubt he counted them in the sense of arithmetic. Probably each of the other ten Senators did the like, the tellers surely did, but what­ Had tl.tis order stopped midway, it might more plausibly be said ever they or the presiding officer did, was !lone by the assent and au­ to be a prescription or definition or expression of functions and thority-nay by the command of the Houses. Had either teller been powers. Even then I should deny that it was so; even then I should selected to sign the certificate, could he not have signed it with equal hold it merely to designate an occasion and purpose, not to determine truth T Had the committee been directed to sign the certificate, or explain the part to ue acted by each actor in the details of the would it not have been equally true as to those who signed it having transaction to take place. Let me illustrate my meaning: Suppose counted the votes f at the last session before the trial of an impeachment began, the Sen­ But now it is said that the certificate implies and proves that the ate had adopted a resolution in these words "Ordered that Mr. Mor­ President of the Senate exercised the power, and the sole power to rill be appointed President of the Senate for the sole purpose of try­ judge and determine what should be counted. ing the pending impeachment. Would such an order have implied It is said, and truly, that afterward for many years the certificates that the President of the Senate so appointed was alone to conduct used were iu this ancient form. So they were. I ask the Senate to auu determine the trialT Certainly not. Why notf Because the inquire whether they meant, or were intended to mean, that he who Constitution does not so ordain. The Coustitut_ion states how much, signed them ha-d exercised the power to judge and determine.-I turn and what he shall do, and therefore be could do no more, and it would to 1t:!05. Aaron Burr was President of the Senate. In his bad emi­ be violent to suppose that the body adopting the order meant him to nence as depicted.bythe Senator from Ohio, he was clear-headed and do anything save only that committed exclusively to hill) by law. intrepid, and was never charged with being diffident of prerogative The governor of a State by order or proclamation appoints a particu­ or distrustful of himself. lar judge to hold court for the sole pmpose of trying an indictment I ask the Senate to hear what Aaron Burr said when the electoral for murder against A B. We do not understand such a proclamat-ion certificates were to be opened. to mean that the judge so appointed is himself alone to conduct the .Mr. MORTON. From what does the Senator read T trial and decide the case. So, had the order of the Senate in question Mr. CONKLING. I read from the compilation on page 36: stopped with saying that John Langdon was elected solely for one Mr. Burr st.ated that pursuant to law there had been transmitted to him several purpose, I should understand it to mean that he was elected to act packets, which, from the indorsements upon them, appeared to be the.votes of the the part legally incumbent on him in the execution of that purpose, electors of a President and Vice-President; that the returns forwarded by mail as well as the duplicates sent by special messengers had been received by him in due whatever it might be. I should understand the meaning and effect time. to be that be was not elected President of the Senate permanently, or gene:rally, but that he was elected for one occasion only, or as law- From this point, observe his words. He waa addressing the Sena­ ~ers would say p1·o hac vice. . tors and Represe_ntatives. Bnt unfortunately, fatally I thmk, for the argument I am combat­ You will now proceed, gentlemel), said be, to count tbe votes as the Constitution ing, the resolution does not stop with declaring that John Langdou and laws direct. adding that. perceiving no cause for preference in the order of was chosen only fot· a single purpose or occasion; it proceeds, "and opening the returns, he would pursue a. geographical arrangement. that the Senate is now ready in theSenateChambertoproceedin the Turn now to the certificate of this count on the next pn.ge, page a7. presence of the House to discharge that duty." The Senate is ready to There is the ancient form copied, "the undersigned certifies that he discharge that duty. What duty 7 Manifestly to count the votes, has counted the votes," although fresh on his lips were the words, pre­ along with ijle House. . served in the same record, that the Constitution committed it to the Mr. SARGENT. Why not "then open the certificates t" representatives of the States and the representatives of the people to .Mr. CONKLING. I thought I had assigned the reason. Because conduct the count, aud beside these words, is the attested fact that the the Constitution declared who should open the certificates, and it count waa actually conducted by the two Houses through their tellers. declared that the President of the Senate should do it. In the dis­ Turn to the proceedinas in 1817. Indiana had entered the Union. Indi­ tribution of dut.ies, it reposed the duty to receive and open the cer­ ana wasn. State. Her Senators sat here, and in the House of Represent­ tificates, in the President of the Senate. It expressly gave this duty atives sat William Hendricks, the ancestor of one of the recent can­ to him as his share and function in the transaction, and having done didates for Vice-President. Mr. Taylor from the State of New York so, it abstained from giving him any other share or function. The when her certificate was read, rose and sairl "I object to that vote." Senate therefore in speaking of the duty reposed in itself and the It was alleged that Indiana less observant of right and truth than she House, did not speak of another duty expressly reposed in somebody is now, had cast out her shoe over certain territory not her own; that ~~ . she had overreached and taken something from a sister-State; some There is I think only one escape from this construction of the other irregularities were laid at her door, and her votes were objected resolution and proceeding. We may escape it by saying that the to. What occurred T Did the President of tho Senate assume to deter­ proceeding being to inaugurate the Constitution, those who conducted mine! No, sir. Mr. Varnum, a Representative from New York,-and it did not deem the Constitution yet operative, and therefore did not there was no twenty-second joint rule then,-Mr. Varnum moved that govern themselves by its mandates. If this be so, of course the argu­ the Houses separate to decide whether the votes should be counted or ment sought from the occasion, favoring the power of the President not. The two Houses did separate; they did debate; they did consider. of the Senate, falls to the ground. Nobody suggested that thi President of the Senate had anything in The resolution proceeds further: the world to do with it; but yet in 1817, as usual, we find the certificate And that the Senate have appointed one of their members to sit at the Clerk's table, identical throughout with the earliest one. The tellers made the to make a list of the votes as they shall be declared- enumeration ; the two Houses conducted the count; the President of And " declared 11 here I take it means "read" or "reported'' or the Senate did nothing, except what he was commanded to do; t.he "announced." two Houses prescribed the form of the certificate; they directed him to sjgn it and he clid sign it, and the certificate stated that he counted submiLting it to the wiadom of the House to appoint one or more of their members for the like purpose-· the votes. No doubt he did in the arithmetical sense ; he heard the tabulation read; he looked at it; he was convinced of the correctness What did the Housedof The House appointed a teller, and resolved of the enumeration; he announced it to the Houses. Again, see what that it would attend- John Adamsstatedou the 3d of February, 1797. Committees had been for the purpose expressed in the message delivered by Mr. Ellsworth. appointed, as they always were from 17~3, beforehand, for what f "To I ask again what was that purpose f The House did attend. The ascertain and report the mode in which the electoral vote should be tellers appointed by the two Houses made the enumeration of the examined "-a bald usurpation, if the President of the Senate had the votes. The Houses then separated. What next occurred T Mr. Madi­ right to examine-they had reported directing the President of the son came to the Senate to say that the House had directed him to in­ Senate, to do certain things, one of·which was on receiving the count form the Senate that the House had agreed that the election should from the tellers to declare the result. When Mr. Adams came to per­ be certified or notified-now mark-" by such persons and in such form his duty, speaking on his oath, and speaking that the nation ruaunei." as the Senate shall be pleased to direct." If the Constitu­ might hear, what did he sayf That he derived his power from the tion ordained that the President of the Senate should certify and de­ Constitution, that the Constitution conferred on him this high pre­ clare the result, what had the House to do with itT What had the rogative f 0, no, sir: House to depute or concede to the Senate f What power could the In obedience to the Constitution and Jaw of the United States and to the com­ Senate receive from the House f What could the Senate say or do in mands of both Houses of Congress expressed in their resolution passed at the pres­ the matter, if the power and duty was lodged in the presiding officer\' nt session, I now declare, etcetera. The Senate apparently thought however that it had everything to At this point, as well as at any time, I may refer to a. remark of do with the affair after the House intrusted its part in it to the Sen­ Chancellor Kent, read y~sterday by the Senator from Indiana, as if a~e. it were authority·against the pending bill. This remark fell £rom 1877. CONGRESSIONAL RECORD-SENATE. 831

the lips of the chancellor in one of the earlier addresses he m:W.e to And then he qnotes. Mr. Collamer resumes. college students. These lectures, when they began, were not designed He admits that it is in the power of Congress to legislate, and doubts only whether as chapters of a law-book. Their author did not then know, that they in the absence of legislation there exists any department of the Government or any were to be the germ of commentaries, which, growing in exactness officer of the Government vest-ed with power to count the votes and declare there­ and care, were to increase into one of the most famous and copious sult; and in relation to that be is only able to bring himself to stat.e by way of opin­ ion that he presumes t.he President of the Senate 1!'1 to count the >otes aud declare repositories of .the law. They were designed originally to b~guile the the result. But he presumes that only in the absence of le~slation. Le~;isla­ heaviness of unwonted and unwelcome leisure. The chancellor had tion on the subject., therefore, according to the high authority ot this distingwshed left the bench at sixty, the constitutional limit; and as he says in jurist, is admissible, and of cour8e within the power of Congress. some touching words which preface the earlier editions, he dreaded My eye falls here, Mr. President, on words uttered by your predeces­ the heaviness of hours unemployed. He went into the Columbia Law sor, Jacob M. Howard of Michigan, then a Senator, whose attainments School and held discourse mingled of history and jurisprudence, gen­ as a lawyer were recognized by all who knew him, who was one of eralized and elementary dissertations designed to impart outlined in­ the leaders of the repnulican party, and who believed, and as yon struction to beginners in the study of the law. I think I must have believe and as I believe in that party, in its usefnlness and its mis­ borrowed some of his words. Yes he says that '' They are of that sion, ~nd in its record, resplendent as it is beyond any other in ardu­ elementary kind which is not only essential to every person who pur­ ous and illustrious achievements. Mr. Howard said : sues the science of the law as a practical profession, but is deemed useful and ornamental to gentlemen in every pursuit." Thus speak­ I confess I do not doubt the power of Congress, should they see fit, to authorize to the President of the Senate to count the votes after he has opened t.he certificates; ing young men of affluence who were laying the foundations of but in the absence of such a statutory provision I certainly could not concur in the culture at large, we observe that the language be employs is naturally "presumption" of Chancellor Kent, that the President of the Senate would have inconclusive and regardless of judicial precision. What does he say: the right to count the votes and declare the result. It is impossible for me to con­ In the case of questionable votes and a closely contested election, this power cur in this intimation of that veFy distinguished authority. I should on the con­ may be all-important. trary, hold, in the absence of an act of Congress, that the duty of counting the votes devolved on the two Houses of Congress tnus assembled. That is, t.he power to count. I stop a moment toremind those who Mr. President, I have paused at the resolution of 17R7 and the pro­ think that the c.ount is mere arithmetic, of the condemnation of such ceeding of 1789, at the form of certificate then and long afterward a view involved in these words. used, and at the remark of Chancellor Kent, because these make up In tbe case of questionable votes and a closely conte1>ted election, this power may be all important. the trio of authorities usually cited of late to support the theory that the President of the Senate is appointed by the Constitution to con­ I submit that if everything, good, bad, and indifferent, is as we duct the electoral count. have been told to be counted, as the multiplication table is said, there I come now to review the practice of the nation for eighty-three would be no "questionable votes/' nor would the power to count, be years-from 1793 to 1877. "all important," or important at all. The sentence continues: Until1869, beginning in 1793, as often as electoral votes were to be .And I presume, in the absence of all legislative provision on the subject that the counted, committees were raised by each House in advance to ascer­ President of the Senate counts the votes and det&rmines the result, and that the two tain and report the mode in which the votes should be examined. Houses are present only as spectators to witness the fairness and accuracy of the transaction, and to act only if no choice be made by the electors. The committees reported how the proceeding should be conducted, the report was adopted by each Honse, and one thing always provided These words suggest three observations. for, was the appointment of tellers by each Honse. "I presume." I need not ask lawyers whether that is the deliber­ The right. of the Houses thus asserted, was never questioned. No ate and considered phrase of a great magistrate long accustomed to President of the Senate, no member of either House, ever interposed weigh questions in exact scales and to pronounce distinctly and a challenge. When the d~y to open the certificates arrived, the two definitely his judgment upon them t "I presume" is not the lan­ Houses directed the proceeding throughout. The tellers counted. guage of judicial conclusiveness or exactness. 0 no. Every question which arose was referred to the Houses. The Houses Mr. EDMUNDS. It is a guess. framed the certificate; they directed it to be signed. He who signed Mr. CONKLING. A guess, yes a guess-a pardonable form of speech it was the organ and representative of the two Houses. when we remember the nature and object of the discourse. We next Mr. ED~1UNDS. Mr. President, on account of the indisposition of find these words: "In the absence of all legislative provision." my honorable friend from New York, who is not physically able to Will any man who stands on the opinion of Chancellor Kent, after continue his speech at this present time, I move that the Senate pro­ hearing these words, deny the power of the Houses to legislate f Or~ ceed to the consideration of executive business; and in making that to put the equivalent of the inquiry, will any man pretend in the motion I venture again to express the hope that we shall be able to­ face of these words that Chancellor Kent believed that the Consti­ morrow certainly to finish this bill if it is to be finished at all. tution deposits with the President of the Senate this power f Mr. BOUTWELL. I ask the Senator from Vermont to withdraw If the Constitution in any way vests the power with the President his motion that I may get a minute of the time of the Senate upon of the Senate, that is thebe-all and end-all of the matter: no legis­ the bill for the revision of the laws. I ask that the Senate insist on lative provision could touch it. If the chancellor believed the Consti­ the amendment to agre~ to the conference asked by the House. tution so provided, nothing could be more absurd than the words "in The PRESIDENT p1o tempore. Does the Senator from Vermont the absence of all legislative provision;" surely he knew that no leg­ withdraw his motion for that purpose! islative provision in such a case could have any more effect th:m the Mr. ED.MUNDS. Yes, sir. wind. But again: 1\IESSAGE FROM THE HOUSE. I presume iu the absence of all legislative provision on the subject, that the Amessagefrom the House of Representatives, by Mr. GEORGE M. An­ President of the Senate counts the votes. .urs, its Clerk, announced that the House had disagreed to the amend­ Yes, historically or in the sense of narrative he does; before these ments of the Senate to the bill (H. R. No. 3156) to perfect the revision of words were uttered by the chancellor nearly fifty years ago, histor­ t.he statutes o.f the United States, and a-sked a conference with the ically and in the sense of narrative and in every sense essential to the Senate on the disagreeing votes of the two Houses thereo~. truth of the statement, he did. So you, Mr. President, do a great REVISION OF THE LAWS. many things, as your predecessors have done, by the acquiescence and command of the Houses. You appoint committees, not only of The PRESIDENT pro tempore laid before the Senate the action of conference, but other committees. A standing rule of the Senate says the House of Representatives on the bill (H. R. No. 3156) to perfect the Senate shall appoint committees by ballot, does it not f But yet the revision of the statutes of the United States, returned from the the President of the Senate appoints committees. How f He does House with a message of non-concurrenee and a request for a confer­ it by the acquiescence of the body, as the organ of the body under ence. the sanction of the body, just as he formerly signed the certificates Mr. BOUTWELL. I move that the Senate insist and agree to the to which I have referred. conference. In these instances the officer does not act in virtue of any right or The motion was agreed to. power which inheres in him, independent of the Senate and its action By unanimous consent, the President pro tempore was authorized to conferring it. appoint" the committee; and Mr. BouTWELL, .Mr. CHRLSTIANCY, and The words of Chancellor Kent clearly indicate that in his opinion Mr. WALLACE were appointed. the examination of the electoral votes is within the law-making prov­ HOUR OF MEETING. ince. I beg to call attention to the view of the meaning of this pas­ sage from Kent, taken by others who are held in pleasant and respect­ On motion by Mr. ED~IUNDS, it was ful memory. In 1865 a warm debate over this clause of the Consti­ Ordered, That when the Senate adjourn, it be until to-morrow at eleven o'clock· tution occun-ed iu the Senate. These words of Chancellor Kent were . read, and Jacob Collamer of Vermont made some observations upon them. He said: The PRESIDENT pro tempore. The Senator from Vermont [Mr. Nobody supposed that the Vice-President could exclude them. Emrm."Ds] moves that the Senate proceed tp the consideration of ex­ ecutive business. That is, questioned votes- The motion was agreed to ; and the Senate proceeded to the con­ But I was about to say that I never heard it doubted before that such a contin· sideration of executive business. After niue minutes .spent in exec­ gency1 as might well bappE.'n because of the manner in which the constitutional provis1on was framed, could be provided for by legislation. Chtlllcellor Ken~ in utive session, the doors were re-opened, and (at four o'clock and thir­ the pst volume of his Commenta.rie.a. saya. ty-five minutes p.m.) the Senate adjour.ned. 83:l CONGRESSIONAL RECORD-HOUSE. JANUARY 23,

HOUSE OF REPRESENTATIVES. has been the practice of the Chair, at the close of the day's session, and just before adjournment, when the Honse is not expecting any ex­ TUESDAY, January 23, 1877. cept merely formal actioni'to ask leave to lay certain pape1·s before the House, and no member ever thinks of objecting to such a request The House met at twelve o'clock m. Prayer by tho Chaplain, Rev. by the Chair. If, however, a motion for the consideration of busi­ I. L. TOWNSEXD. ness on the Speaker's table is made in the regular way, at the close of Tho Journal of yesterday was read. the morning hour, then the whole House would he advised and pre­ CORRECTION OF THE JOURNAL. pared for any form of resolution that might be submitted. But the Chair will perceive that to hold the Honse strictly bound by that The SPEAKER. The Chair desires to state to the House that he unanimous consent which is always granted at the reqnest of the wishes to modify, in fact to change, his language of yesterday in one Chair, if it should turn out that there was some one on the floor pre­ particular. pared to submit an extraordinary motion, the House may be caught Mr. HOAR. I rise to a question which I believe I ought to state on almost any occasion without any preparation for action upon such before the Chair addresses the House with regard to the correction, a m0tion. Therefore I do not think it wise that the Chair should ask however, if the Chair will give me the same rights after he has to entertain any but the most ordinary motion after such unanimous made his statement, I shall be satisfied. consent has been given to him. It is for that reason I call attention The SPEAKER. Certainly; the Cha.ir is in that line himself. to the matter. The Chair desires to modify, in fact to change, the statement made The SPEAKER. The Chair would state, in reply to the gentleman yesterday at the close of the session, that the resolution of the gen­ from Iowa, [Mr. KAssoN,] that Rule 54 in effect is an obsolete rule. It tleman from New York [Mr. WOOD] would come up to-day as unfin­ has become a matter of unbroken practice that business upon the ished business. Speaker's table, at least so far as messages from the President and Upon careful examination and after reflection, the Chair thinks other executive communications are concerned, ia not disposed of as that in that respect he was in error. He thinks that the gentleman provided in Rule 54, certainly not within the experience of the pres­ from Kentucky [Mr. IL.~OTI'] waived his motion to afljonrn; other­ ent occupant of the chair. On the contrary, it has been the practice wise the gentleman from Iowa [Mr. KASSON] would not have had the for the occupant of the chair to dispose of messages and executive right to move a suspension of the rules. The motion to adjourn communications in just the same manner in which the present occu­ ha.vingueen waived-tbatisto say, nothavingueeninsisted upon-the pant of the chair disposed of them on yesterday. The gentleman from Chair then recognized the gentleman from Iowa [Mr. KASSON] to Iowa [Mr. KASSON] suggested yesterday, in substance, that he did not move a suspension of the rules, which motion in effect took the gen­ recollect any such action as this being taken on a Monday. The Chair tleman from New York [Mr. WooD] off the floor. The message not has not had an opportunity to look very far back, but he finds tllat on having been subsequently disposed of, in the opinion of the Chair, it January 25, 1875, which was a Monday, the same action took place as must be restored to the place where it was before it was read, that ia, on yesterday, in regard to a communication concerning-the alluvial to the Speaker's table. basin of the Mississippi River. Mr. HOAR. The point to whichiaroseand upon which I proposed Mr. KASSON. The same action f to address the Chair, was this: the intimation of the Chair yesterday, The SPEAKER. The same as on yesterday. and to which the Chair has just referred, was not a ruling, strictly Mr. KASSON. Was the question an ordinary motion of reference! speaking-, upon a question of parliamentary law ; it was a statement The SPEAKER. The Chair on a Monday asked unanimous con- of the Chair as t.o what would be the order of business the next day. sent, pending a waiver of a motion to adjourn, to lay before the House Of course, the Chair could make a ruling upon that question only a communication from the President. But that is immaterial, except when the question should arise. It seems to me therefore not a cor­ that the Chair desires-- rect practice to insert in the Journal as a mling of the Chair a mere Mr. KASSON. I only wish the Chair to st-ate whether the motion statement of the Chair of what would be his ruling in the future. in that cat~e included any extraordinary action or extraordinary pow­ The suggestion that I desire to make, therefore, is that, as a record ers. of ~he remarks of the Chair is preserved for the use of the Honse and The SPEAKER. The Chair does not know whether it did; be for himself by our RECORD of debates, it is not proper to journalize thinks perhaps it did not; but that brings up another point, as to the the answer of the Chair to a parliamentary inquiry as to what will extraordinary powers proposed to be conferrecl in this case by the be the order of business at some fut.ure time. I would therefore sug­ resolution of the gentleman from New York, [Mr. WooD.] The Chair gest that that portion should be stricken from the Journal. ruled yesterday that that part of the resolution of the gentleman The SPEAKER. The Chair agrees with the gentleman from Mas­ from New York was in order; and if the question should arise again sachusetts [Mr. HOAR] that no remarks of the Chair should go upon and his ruling should be questioned, he will give at length his rea- the Journal, that only the rulings of the Chair should be entered sons for that ruling. . upon the Journal. The modification suggested will be made in that Mr. KASSON. The only desire I had this morning was to call the respect. attention of the Chair to the fact that it woule, the Chair. is moved that, together with the accompanyingpapers,it be ordered to inclined to believe that lihe correction of the RECORD Is, equally with be -printed and recommitted. the correction of the Journal, a privileged question. He therefore The motion was agreed to. recognizes the gentleman to make such a correction. JOINT COM"ZillTIEF: ELF.CTORAL DILL. Mr. HARTZELL. The RECORD reports me as not voting on the call of the yeas and nn.ys upon the adoption of the resolution introduced Mr. WELLS, of Missouri. Mr. Speaker, I ask unanimous consent to present at this time a memorial in favor of the passage ofthe bill by the gentleman from Massach~setts, [.Mr. SEELYE.] I was present and voted "yea" on that resolntwn. reportell hy the joint committee of the two Houses for counting the The SPEAKER. The correction will be made, and the Journal, in electoral vote, and ask tbat it be read and spread npon the record. which the same cnor occurs, will also be corrected. Mr. TOWNSEND, of New York. I object. The Journn.1, as corrected, was approved. Mr. WILLIS. Let it appear that the republicans object. Mr. TOWNSEND, of New York. Yes; you are tho man who charged NAVAL POLICY .OF THE UNITED STATES. a conspiracy against republicans. Mr. WHITTHORNE. By order of the House, on the lOth instant., Mr. WILLIS. Yes, and yon are one of the conspirators. the bill (H. R. No. 4389} to authorize the formation of a mixetl com­ Mr. TOWNSEND, of New York. As well miglitJnlian the apostate mission to inquire and report as to the future naval policy of the make cha.rges against Christianity. United States was made a special order for this day. I aRk unanimous The SPEAKER. This discussion is all out of order. consent that this order be postponed for one week, to retain the same GEORGE C. ELLISO~, CHIEF E~GINEER OF THE HOUSE OF REPRE­ powers and privileges which it would have io-day. SENTATIVES. Mr. O'BRIEN. I object, unless it is unuerstood that t.he bill, when Mr. WILLIS. I ask unanimous consent to introduce the following it comes np in regular order, shall be open for amendment. resolution for reference to the Committee of Accounts. Ml'. \VHlTTHORNE. That was the understanding when the order The Clerk read as follows: was made. Resolved, That the Clerk of the Honse pay, and i~ hereby authorized and directed . The SPEAKER. There being no objection, the order asked by the to pay, out of the contingent fund, to George C. Ellison, chief engineer of the House gentleman from Tennessee will be made. of Representatives, to imlemnif.v him for moneys expended by him and incurred by hlm in and about certain legal proceedings in defending the title and retaining THE ELECTORAL VOTE. the possession of certain property belonging to the National Government in his Mr. PIERCE. I ask unanimous consent to present a memorial of custody as an officer of the House. merchants of Boston, praying for the adoption of the proposed plan Mr. HOLMAN. As I understand H, this is a resolution introduced reportecl by the joint committee for counting the electoral vote. As simply for reference to the Committee of Accounts. this paper is very brief, I ask that it be read. 1\ir:WILLIS. That is all. The SPEAKER. Is there objection to the request of the gentle­ There was no objection; and the resolution was received and re­ man from Massachusetts f ferred to the Comruittee of Accounts. M.r. TOWNSEND, of New York. I object. • MR. C. W. BUTTZ SWORN L.~. Mr. PIERCE. I hope the country will take notice that the gentle­ Mr. HARRIS, of Virginia. Mr. Speaker, I rise to a fJuestion of priv­ man from New York objects to everything of this kind. ileO'e, and present. a report from the Committee of EJections in the Mr. TOWNSEND, of New York. I hope so too. I am acting in the cas~ of C. \V. Buttz, from the Second Congressional District of South view of the country. Carolina, and ask that the report and accompanying resolution be read. UNITED STATES AND 1\!EXICA..~ COMMISSION. The Clerk read as follows: }.lr. SWANN. I am directed by the Committee on Foreign Affairs The Committee of Elections, to whom was referred the case of C. W. Buttz, un­ der a resolution of the House, report: to present a communication from the Secretary of State, touching the That the said C. W. Buttz ha\Dngprodncetl before said committee what purports commission unuer the convention between the United States and l\fex­ to be a certificate of election for the unexpired term in the Forty-fourth Con !!Tess ico of July 4, 1868. I ask unanimous consent that the communication from the second congressional rliatrict of South Carolina., and having produced and be recommitted and ordered to be printed. filed before said committee tbe certi fica.te under seal of the supreme court of South Uarolina, showing that said Bntt.z did receive a majority of the votes cast at the elec­ The SPEAKER. The communication will be read. tion held to fill the vac.aucy in said second congressional district of South Carolina, The Clerk read as follows : without deciding upon t.be validity of said first-named certificate, are of the opin­ DEPARTME~"'T OF ST.ATE, ion that saill Buttz li! entitled prima facie to a seat in the Forty-fourth Congress Washington, January 19, 18i7. from said congressional district, and would recommend the adoption of the follow­ Sm: I have the honor to invite the attention of your honorable committee to the in!! 1'6Solution: necessity of making provision for and carrying into etf~ ct the awards made by the Resolved, That C. W. Bnttz has a prima facie title to a seat in this Honse as a commission under the convention between tho United States and Mexico of July member of the Forty-fourth Congrf)ss from the second congressional district of 4, 1868. South Carolina for the unexpired term. The commission has closed its labors, and awards ha\"e hePn made against Mex­ ico in fa.vor of citizens of the United States to the amount of $4 125,622.20. Mr. HARRIS, of Virginia. I demand the previous question on the Awards were ma£le llgainst tho United States in fa\"or of the citizens of Mexico adoption of the resolution. to the amount 150,498.41. The previous question was seconded and the main qnestion ordered; By the terms of tbo lrel).ty, the first payment on account by the Government and under the operation thereof the resolution was adopted. agamst which the larger amount has been awarded is payable on or before the last day of this month. Mr. HARRIS, of Virginia, moved to reconsider the. vote by which A very recent dispatch from our minister in M:exico states he has assurances the resolut.ion was adopted ; and also moved that the motion to re- from the _gentleman in char_ge of the foreign office that the payment will be made. consider be laid on the table. · An appropriation by Congress will be necessary for the payment of tho amount The latter motion was agreed to. of the awards a,gainst the United States, which sum, by th~ terms of the treaty., is to be deducted from the awards against Mexico, and from the amount to be paill by Mr. HARRIS, of Virginia. Mr. Buttz is present in the House, and I Mexico. ask that he be sworn in. Provi'lion should also be made for the distribution among the several parties rn­ Mr. BuTTz, accompanied by his colleague, Mr. HoGF:, appeared in titled of the money as it may be received, and also for the re-imbursement to the front of the Speaker's desk, and was duly qualified by taking the United States of the amount paid by the United States toward the joint expenses of the commission, and which by the terms of the treaty is to be deducted from the customary oath. a. wards. This suru amounts to $114,948.74 paid by the United States, Mexico hav­ PRIVILEGE~, ETC., OF THE HOUSE IN COUNTING THE ELEC10RAL VOTES. ing paid $63,789.72 of such joint expenses, the total expenses chargeable to the joint commission under the provision of the treaty having been $178,738.46, being ltss Mr. HOLMAN. I de:nand the regular order of business. than 5 per cent. on the whole amount of tbe awards. The SPEAKER. The House resumes the consideration of the re­ The amount chargeable to the joint commission as above does not constitute the port submitted by the gentleman from Kentucky, [Mr. KNoTT,] from whole amount paid by the United States, as each govemment bore the expenses of its :respective agent and of its clerical force, and expenses of translation, &~. the select committee on the privileges, powers, and duties of the I inc1ose herewith a. copy of the final account between the two governments, and Honse of Representatives in counting the vote for President and of the protocol signed on the 14th day of December last; and also a draught of a bill Vice-President of the United States; and the gentleman from Massa­ entitled" An act to provide for the distribution of the awards made under the con­ chusetts [Mr. SEELYE] is entitled to the floor. vention between the United States of America and the republic of Mexico, con­ cluded on the 4th day of .July, 1868," which I venture to submit to the consideration Mr. SEELYE. Before proceeding, Mr. Speaker, I ask that the reso­ of your honorable committee. lutions reported from the committee be read. I have the honor to be, sir, your obedient servant, The Clerk read HS follows: HAMILTON FISH. Hon. THOMAS Sw A~'N. Res"lved, First. That the Constitution of the United States doe~ not confer upon Ohair man of the Oommittee on Foreign Affairs. the President of the Senate the power to examine and ascertain the votes to be counted as the electoral votes for President and Vice-President of the United l\fr. SWANN. I move that communication from the Secretary of States. Second. That the only power which the Constitution of the United States con­ State, together wit.h the accompanying documents, be printed andre­ fers upon the President of the Senate in respect to t.he electoral votes for President committed to the Committee on Foreign Affairs. and Vice-President of the Unitecl States is to receive the sealed lists tra.nsmitte

Mr. SEELYE. 1.Ir. Speaker, the resolutions offered by the commit­ every decision 7 Did they not know p.ow easy it was to raise objections a"ainst the tee are several, but the question underlying them all is single, and is, votes of particular elections, and that in determining upon those it was more tban r.robable ~he men;' bers would recollect their sides, their fa.vori te candidate, nncl some­ in my judgment, one of the gravest which this Congress is likely to ti~es therr own mtere.s~s 7 Or must they !JOt have supposed that in putting the consider. Simply stated, that question is whether oue branch of ultimate antl final dems10n ef the electors m Congress, who were to decide irrevo­ Congress can be tho sole judge of the lawfulness of rejecting what cably and without appeal they would render the President their creature and pre­ purports to be .an electoral vote; and this, stripped of all its guises vent hia assuming aml exercising that independence in the performance of his and seen in its naked issue, is the question, whether a single branch duties upon 'vhlcli the safety andnonorof the Government must forever rest 1 of Con~ress, which, in a certain contingency, is to elect the President . It is also Mr. Pinckney's language, "that no power or authority is or the Vice-President of the United States, has authority to decide g1ven to Congress, even when both Houses are assembled in conven­ without the concurrence and against the judgment of the other House tion, further than to open a.nd to count the votes and declare who are whether the contingency which confers upon it this great power and President and Vice-President, if an election has been made ; " "that high responsibility bas come. In other words, has the Honse of Rep­ so far from appointing committees to receive memorials or petitions resentatives tho right to make the opportunity which puts the election r~specting the election or de~ide npo~ it, or so far from haviug any of the President of the United States in its own powert This is the rtght to delegate au authority on this subject, Congress shall not single issue of all these resolutions, which four members of the com­ themselves, even when in convention, have the smallest power to de­ mittee reporting them affirm and three deny. If it be a right at all, cide on a. single vote." it is a constitutional right, and it becomes this House before clothing Is it not therefore a libel upon the Jetter and an entire reverRal of itself with these solemn functions to consider well whether the Con­ the spirit of the Constitution to affirm that either House may insist stitution has left at our option so sacred an investiture. that its own view of the informality or illegality of the electoral It would be impertinent for me, .Mr. Speaker, in this presence, as votes east, or of the COD(lition of things in the State where they were well as impossible, to discuss this subject as a constitutional lawyer; cast, is to prevail against the clear face of tho votes themselves and neither is this necessary. I shall therefore leave the more purely against the pronounced judgment of the other House 7 This doctrine legal aspects of the question to my distiuguishetl associates and con­ seems to me, Mr. Speaker, to be both monstrous and revolutionary. I fine myself to some general considerations, determinative of the result, have no better words to express the view in which I think it should which it may not be Improper for me to present, in which, howeyer, be hehl than those used in the Senate by the distinguished and accom­ I shall not presume to instruct the members of this House, but only plished Senator from Delaware [Ur. BAYAHD] March 13, 1876, when to remind them, and that briefly, of what may be as familiar to them he pronounce~ this very do?tri~e "an utter usurpation, utterly with­ aa to myself. out warrant m t.he Conshtubon, dangerous in the extreme, aD(l There are some things quite apparent, even to a superficial student threatening to overthrow that spirit of popular government which all of our constitutional history, and which a profounderstmlyonly makes over underlies the frame-work of our system." more clear. The care with which the framers of our Constitution Such a doctrine destroys the restraints with which the Conrrress is so sought to guard the indepemlence-eaoh in its sphere-of the three car~fully hedged. by _the _Constitution; it subverts tlw independence co-ordinate functions of the Government, is not only admitted by which the Constttutwn 1s so careful to confer upou the Executive; every student, but admired by every statesman. Indeed, there is of tw., powers of the Government originally intended to be co-ordi­ hardly any one feature of the Constitution more prominent, a,nd cer­ nate it gives the opportunity for the one to be made the creature of tainly there is no one more carefully elaborated, than the clear dis­ the other, and therefore the very gronllflwork and frame-work of the crimination with which it marks out t.he legislative, the executive, Government itself has been changed. How long then will our other and the judicial powers and duties respectively ; and in reading the institutions be likely to rema.in as they are 1 How long before the debates in the convention by,which the Constitution was formed, I eagerness of a party or the exigencies of an administrat.ion fertile in tbink what impresses one more forcibly than anything else is the expedients and facile in their exercise, as we know these to be, will ~olicitude exercised that these three departments of the Government contrive on any occasion reasons for discarding the vote of a Htate, should be in the fullest sense co-ordinate wit.h each other, and sub­ and how long before the exceptions to this rule shnll become the rule ordinate only to the Constitution and the will of the people. \V e itself, and the election of President and Vice-President by the peoplo therefore und.ermine the very ground-work of the Constitution when of these United States has become a thing of the past forever Y These we give to either one of these three powers any absolute control over are far from being"impossible contingencies. Human nature is al wavs either of the others. It is true these three departments are not and engaged in throwing away its privileges. Neither nations nor inch­ cannot be absolutely independent of each other. But their depeud.­ vidual men, neither institutions nor laws, neither arts nor literatures ence is reciprocal, each yielding as much as it receives. They are not nor civilizations nor sciences have ever shown themselves incapable sticks of a fagot, but branches of a tree. Their relation is organic! of .det~ri.oratio~, have ever, in fact, shown themselves capable of and their dependence an interdependence. The eye cannot say unto mamtamrng thmr advancement save as they are helcl thereto by some the hand, I have no nee(l of thee; nor again, the head to the feet, I outside power. Retrogression is much easier tmd much more frequent have no need of yon. But this interdependence does not make one in this world than progress, and we cannot afford to throw away any the creature of another and cannot transfer to one the privileges, of our safeguards. the powers, or the dutieR which belong to another. I know we are told that by this very doctrine as embodied in While all this is apparent as a general truth, nothing can be the so-called twenty-second joint rule the countinrr of the electoral plainer, as a particular point, than that the framers of our Constitu­ votes in the last three presidential elections has be~n controlled, and tion did not intend that Congress should ha\e anything to do with in the admiration which men of democratic antecedents have for determining who should be President, except iu the impt·obable a.n'd this specimen of republican administration, I almost find prefirrnreested in tlbe State Leg­ Speaker, is clear, but I do not find it wholly in partisan prejudice or islatures. If it is necessa.ry to )l~ve guards against improper elections of electors and to institute trihtmal~ to inquire iuto tqeir qualifications, with tho State w~s­ passion, potent as these forces might be to produce such a resnlt at latures, IUld with them alone, re.\!ts th.o _power to institute them, ami they must"'ex­ the present time. I find it rather in that tendency of all constitu­ ercise it. To _give to Congress, enm wfien assembled in eonvention, a right tore. tional governments whereby the legisla.tive power is constantly en­ ject or admH the Yotes of States, would h;~>vo been so gross ami dangerous an ab­ croaching upon the executive and judicial powers, and which, though surdity as the framers of the Constitution never co!lltl b_a\"e been guilty of. How ~uld they expect that in deciding on the election of a President, particularly where undoubtedly to a certain degree compatible with liberty, is liable to su.eh iloctioa waa &tronil.v oonte~oted, part~ &pu·it would not prevw and f.tO\"W"D the aamo cxcesseQ and the ~•me dan:;ers as when the throne or the 1877. CONGRESSIONAL RECORD-HOUSE. 835 jnd!!IDent-sea.t bas shaken off the restraints of law. Indeed, I some­ that State bas chosen to verify and return its vote. If the methods tim~s think that the ease with which legislatian may assume for it­ which a State adopts are obnoxious to us anil we wish to change self not only the enactment lmt the interpretation and the enforce­ them, t.here is only one way in which it can L'twfully be done; the ment of law is one of the greatest clangers with which our modern way which shows the radical difference between a constitutional state is threatened. It is at least one of the most prominent facts of government and a dElspotism in that under the one reforms are sought our modern civilization. In France the executive is made dependent by amendment and uncler the other by revolution. for his election upon the legislature. In Great Britain the executive If this were the proper time I should like to speak of the way in llas become practically mergetl in the legislature and has ceasetl to which the late election was, in some localities, conducted, though I be a co-ordinate factor of tho government. The House of Commons fear my words would give no salve to any sore from which either 1s pr::tet.ically the executive as much as it is t.he legislati \'e power of part.y in that contest is now suffering. Amid the confused and con­ the British realm. In our own country the dissension between Con­ flicting testimony now crowding upon us from contending commit­ gress and President Johnson has show.u clearly enough that when tees of the Senate and this House, majorities and minorities-of either Congre~s chooses it ha~ the President in its power. Like illustrations, House and, so far as yet appears, of all the committees contradicting in om· own history and elsewhere, of the encroachments of the legis­ each other, the only fact, as yet, which stands out clear and beyond lative upon the judicial power will Qccur to every oue. Now, when dispute is that in certain quarters during the late election both par­ tho law-making power becomes the only power, finding in its•own tieu-leaders and led-actetl just as wrongfully as they could, re­ voice the only rnterpreter of its decrees, and in its own arm their only strained by no conscience, by no sense of honor or rectitutle, by noth1 executioner, it matters not whether this law-making power ia vested ing but the sheer impossibility of doing worse. This, in my judg_. in an assembly or an autocrat, it llecomes in either case a despotism. ment, is far from being true of the country at large. I doubt if any And! think that an assembly, with nothing toconh·olit, isamuchmore similar occasion ever presented so grand an exhibition of the self­ dangerous tyrant ·than an autocrat, for there is a certain sense of re­ possession of a great people as ditl our late election, taken as a whole. sponsibility to an unseen tribunal, a certain sense of that law which, It was preceded, doubtless, by heated discussions, wherein passion as Sophocles says in the Antigone, is not of to-day or of yesterday, and often took the place of argument, and partisa.nsbip increased the prej­ no man can tell whence it came or when it came, a certain sense of udices behind which it was intrenched, but it was attendell in the divine justice, which a single will invested with high power is quite main by such calmness, such self-control, such decorum, such dig­ likely in some de~r~:~e to feel, and -which an assembly of many wills nity that an American may be pardoned for pride as he points at -it. may be quite as likely to disregard. The reason for tllis is found in Honestly and intelligently, in most localities, were cast those potent the fact that responsibility always individualizes a man, it belongs instruments to him in his singl0 personality, and, unless carefn11y guarded, asso­ That come down as still ciation with others for common ends is more likely to weaken an in­ As snow.fl.akes fall upon the sod; But o:x:ecute a freeman's will dividual's sense of responsibility than fo strengthen it. Hence there As lightning does the will of God. is danger to our future liberty andotir future law in this steadystritle of our modern life toward the supremacy of the Legislature. .And I But this ought not to blind us to the fact indisputably proved, that call upon gentlemen here to pause in this movement, to pause at least in certain quarters the whole procedure of the election was a shame sufficiently to ponder its tendencies and its perils, anlection sha.U be held, and all the States entitled to cL.omnibleLord," &c., and when called us,] on Saturday last, indulgetl in a vein of remark which I now to order and reprimanded for his language he said, "I meant no pause to notice, and my motive for so doing will presently appear. blasphemy; I only thought the wonl had a sort of a heavenly sound I quote a few detached sentences from his speech as specimen bricks about it." [Laughter.] of tho whole structure. He said: Mr. Speaker, here and hereafter may we not call a truce to all this vein of remark. I stand not here to defend ffiy ses S. Grant, Presi­ We have universal suffra~e. No man is clenied the elective franchise. No man is exempt from the responsil>ility which its exercise imposes. dent of the United States. I have criticised some of the minor de­ He proceeds : tails of his Administration as freely anu fully as any one, but upon its great measures, his financial plans, his forei~n policy, his merci­ But, gentlemen, when unprincipled party leaders recovered from the shock of their defeat they conjmed up a fiend in their hearts. fnl and wise treatment of the Southern States of this Repuulic, and the deathless record of his military fame, he needs no defender, for They had a Chief Magistrate alreadypra.cticed in assaults upon the rights of his he is his own best defender. And I tell the gentleman from New ~untrymen, who had already caused every honest check to blush with shame and York in all kindness that in these things he will remain unharmed ~very honest heart to throb with madness by the use of bayonet and cannon in sup­ and unscathed by any who, choosing to leave the republican party, in­ pressing the voice of the people. * * * 0, how American manhood is debased, how American soldiersllip is sullied by the ex:amploof a Roger! UnhappyRepub­ trench themselves within the ranks of its enemy, and from demo­ llc, when t4e defenders of its people become their oppressors ! cratic ramparts shoot poisoned arrows which fall pointless at his feet. Again I say, in common decency and in the name of manhood and He said, speaking of the President: the honor of our country, a truce to this abuse of its Chief Magis­ Ho e>idently had learned :t lesson from Crosar Borgia, who, after conquering trate; criticise his public acts if you will, but spare these personal Romagna. appointecl r..amiro d"Orco as govemor and ,gave him limitless authority. JTe oppressed the people by his baseness and crueUy; wllen Cresar llorgia, w llo had in· assanlt.s. Why, sir, he had hardly been seated in the executive chair atigated all, jntent O~JlY upon his schemes, with a view of escaping the reproaches when his danghter, then a mere child traveling in Europe, was pa­ whlcb were jnstJy Qis d:no, causeQ. R;lmi.ro to be massacred in the market-placo, be­ raded and criticised in the public prints; hiti two boys n.t college fore the ayes of all tho people. were assailed and malignetl, and both wife and children were rudely brought out from the retiracy of home and dragged before the public In Ruger he found another ro4miro. gaze. H was a safe, if not a manly thing to do. You might strike I bear the gentlem,an from New York I).O feeling of unkindness or him in his tenderest feelings, outrage him in the dearest and most disrespect. But, Mr. Speaker, may I inquire in all seriousness, is this sacred relations of life, he could not reply ; no man occupying his po­ the language of a statesman or the ravings of a maniac f [Laugh­ sition could do that. But I tell the gentleman from New York, and ter.) General Thomas H. Ruger is my own townsman. His resi­ all others who follow iu his wake, thn.t this country will remember dence iB in my own city. Th.ere bi.s father, brotl)ers, p.nd family re­ its defenders, and th:1t he may quote Cresar llorgia, and Ramiro to side, and there I have known him almost from Qoybood. Knowing his dying day, bnt the names of Graut and Ruger are emblazoned in him as I do, knowiu~ his sterling qualities as a gentlem_an, bjs br.av­ gratitude and in glory on the escutcheons of this Republic and there ery as a soldier, his standing in t)le 4rmy, ~~d his devotion to his they will remain when their traducers are gone a.nd shall have been country, while I might owe an apology to him for tnrnipg aside to forgotten. [Applause.] dignify with notice an assault so unjust ~ud uncalled-for .as this, I Now, sir, this bas become a very queer constitutional discussion. will never sit quietly in my seat here ;).nd f:l.n to c}J.aracterize it as I [LaugQ.ter.] For one I regret that it has seemed necessary. I say to think it deserYes. What is the historical parallel which the gentle­ the gentleman from New York, I cherish no ill-will toward him; on man from New York has so flippantly brought forw.ard f the contrary, I have rather admired his genial ways. If he should Who was Cmsar Borgia, with whom he so gaily compares the Chief feel hard toward me, as this is a period of compromise, I tender him Magistrate of the United States t An Italian by birth, o.f Spanish in that spirit the story I once heard of the bovine and the fool. It 1877. CONGRESSIONAL RECORD-HOUSE. was said that the former seeing the latter trespassing upon his do­ tendment of any turther grant by implication, and the power to count main pursued him to the center of the field, when to his utter aston­ votes clearly rests in the two Houses of Congress; while a third class ishment his supposed non-resistant victim turned upon him, aml maintain that the power is given in general wrms to the Government seizing him, with sled-stake in hand, belabored his sides until, his of the United States, or to some officer or Department thereof, and bovine majesty bellowing at every bound, his assailant exclaimed: that it is the duty of Congress, under section!; of article 1 of the Con­ " Who began itT who began itT who began itT" [Great laughter.] stitution, to" make all laws which shall be necessary and proper for Sir, I gladly return from this unpleasant digression to pursue the carrying" it into execu~ion. line of remarks I had originally intended. Now while Congress may make all necessary and proper laws for Mr. Speaker, the peril which the leading statesmen of this country carrying such a power into execution, it can make no law to take have predicted might arise whenever the time should come that one from an officer or department of the Government a power which the electoral vote would decide a presidential contest has fallen upon us Constitution has vested in such officer or department; and to claim at last, and found us unprepared. that it may do so in this case would be to beg the whole question; so The danger of revolution, which Mr. Seward said "must be soen to that logically the first fact to be determined is, has this power been arise from the possibility that injustice may occur in ca-ses where the vested either in the President of the Senate or the two· Houses of law has not provided with sufficient care for asctrtaini.ng the will of CongressY the people," is the danger which confronts us to-day. Let ns consider the question in the a{} verse order. It is claimed by For more than half a century eminent men in both Houses of Con­ many that the power to count the electoral vote is so clearly vested gress have pointed out the danger and dwelt upon the necessity for in the two Houses of Congress that to argue to the contrary is semi­ providing against it ; yet up to this very hour the question has been revolutionary; and some go so far as to assert that any attempt to met only to be evaded, and has been dodged when it should have put in practice a different rule would justify the interposit.ion of been decided. armed force to prevent it; while others contend that where there is Sir, may we not at least hope that the venerated wisdom of the don bt the more reasonable, safer, and better rule should prevail, fathers and the sleepless vigilance of our predecessors here shall not which is to allow the two Houses to make the count. be quoted upon us this time, while in the midst of partisan beat, with Finally, it is maintained that from t.he organization of the Govern­ vast interests clamoring for the mastery, and human passions mgi.ng ment to the present hour no President of tbe SenatP., as a matter of like a sea, we diligently seek some reasonable interpretation of that fact, has either claimed or exercised the right to count the votes; but clause of the Constitution which was born in vagueness and left in has opened the certificates and handed them to the tellers appoint{}d uncertaint.y' by the respective Houses, who have made the count and ascertained Mr. Speaker, if there was ever a time when the soul of the patriot the result, and that, so uniform and unbroken has been this prac­ and tho mind of tho statesman should rise above all partisan con­ tice, any attempt to change it now would justify the marching upon siderations, that time is in the Forty-fourth Congress and in the the capital of thousands and hundreds of thousands of unarmed men, second session of its life. thereby securing a calm, dignified, and proper construction of consti­ Webster said that a question well stated was half argue(}. While tutional law. none of us may hope to emulate his great powers of generalization Mr. Speaker, inasmuch as these men are to come unarmed, may we not and statement, yet the humblest of us may act upon the hint and de­ venture to inquire whether there be not another side to this question' termine, as well as we can, the real question in dispute. That clause And if we may, then in prosecuting the inquiry let us remember that of the Constitut.ion which forms at once tile cause of the difficulty we are not seeking to determine what the framers of the Constitution and affords the only means of relief reaus as follows: should have done or what in our opinions would have been wiser if they had

the count, and as such are indispensable to the performance of such ~ess a!'ls~mbled should fix. ~ day :,n whlch electors should be appointed by the duty at all 'f StateR which shall ha'\"o ra.ttfied the same, antl a day on which the tl.lcctors should. A othe thi If 1 to th p "d t f th S t th 4-~ h assemble to >ole for the President, autl tbo time and place forcolDlllcncina proceed· n r ng. we app Y e resi en ° e ena e · e ~~eC - ing ~:muer thi~ Cor3titntion. That after ucb pul>1icat:iun, the electors shoulll bo nical and strict rule of construction that the grant.ing of a power, appomted and the Senawrs ana P.epresentath-es elected. That the electors should in express terms, precludes the intendment of any further grant by meet on the day tixed for the electint. and should transmit their implication, then the Constitution expresslyrequiring the two Houses votes certified, signed, sealed, aml directed, as Llu3 Constitution rettuireR. to tho of Congress to be present at the openinbcr and countin!! of the votes, Secretary of the United States in Cong;ress assembled; that the Senators aud Rep- . . . d d h h ~ resentatives. should C?n>ene at the time and place assigned ; that the Senators if 1t mten e t at they s ould do anything more, why did it not say should appomt a. PresHlent of. the Senate/or the sole p·urpose of ,·.;.riving, opPning, so in/lain words¥ The adding of the two simple words "by them" and countmg the votcNjor Preatdent; and that after he shall be chosen ~ht1 Con!ITe~s woul have made all express and plain, in which case the proYision tog~therwith the President. should without delay, proceed toexecu'te this U~nsti~ would have read : "The President of the Senate shall, in the presence tutwn. of the S.enate and House of Representatives, open all the certificates It is said th~t this carries no weight because it proposes a mere tern- and the votes shall then be counted by tllem." porary expedumt for putting the new Government in motion ; that Are we to be told, sir, that the framers of the Constitution were ~t ~vas necessary for the Senate to appoint a President to preside over deeply impressed with the dangers whic~ would beset a presidential It m advance of the election of the Vice-President being determined election; that it would prove the heayiest strain upon the system because it was necessary, under the Constitution, for the presidinO' offi~ they were establishing, and that they ne\·er could have intended to cer of that body to "open all the certificates." But does not the ~rgu­ conf~r so_ importan~ a trust upon any one man; and then, that they ment prove too much f left It allm uncertarnty and peril for tho want of the use of two simple If the Senate and Honse of Representatives were to count the votes words f But it is said that the power is so vast and dangerous that these two bodies were already elected and in being. It was in the~ both reason and common sense forbid the idea of any such individual presence that the votes were to be counted and tbey were as compe­ trust. tent to count them then and there as they ever could be. If the reso· 'Why, sir,"to hear people talk, one woulfl sometimes suppose that. lution hacl read "that tho Senators should appoint a President of the . power had actually changed its nature in this country, aml t.hat under Senate for the sole purpose of 1·eceivi11!J and opening the votes," bow plain our system of distribution, checks, and balances, there was 110 longer all else would have been Y There was a necessity for this, but there was plenary power any~llere, nor danger from its arbitrary abuse. Ou and co~1lcl be no necessity to app.oint anybody. to count the vo.tes, be­ the contrary, what IS the fact Y Take the executive. leO'is1ative and cause, if the Senate and House of Representatives were to do It, they judicial departments of the Government, and how often°does it ~ccnr were present, r~ady and competent to perf?rm that duty. But the that the will of a single individual may decide questions of trans- fact that a; Pres1deut of th~ Senate was appo~ted for the ''sole" pur­ cendent importance. The opinion of one judened in tho city and State of New York, the sixth w_hiCh you sit to·clay, shall in defiance of all right dare to betray his y the Sen­ t:.on "f!Ae Gonstt.tutwn, and by those who had, opporttmity to ttnde-rstand the intention ate !'or that pmpose, to General Washington and Mr. Adams. of the tnstrum~lt, it.is not to be denied ibat a strong presumption exists that the Now, sir, were the members of this Senate men who could under­ construction 'T'l{}hUy tnterprets the instrument. stand what they were doin$, or what had been uone by tho two Now, sir, we have all become familiar with the fact that on the Housesf Turn to your Constitution and yon will fiud tbatJobn Lang­ 28th of September, li89, when the constitnt.ional convention had don, of New Hampshire, who says he "couuterl all the votes," and completed its lal>ors and wa&~ a bout to send the resnlt down for rat­ who subscribed this certificate, was the very first. man who signed ification by the various State Legislatures, there went with it this the Constitution of the United States. There were ten members of memora~le resolution, signed by George Washington, president of the that Senate, and six of them had been members of the constitutional convention: convention. Who was Oliver Ellsworth, who carried the first mes· sage from the Senate to the House of Represensatives Y A member . Resolv~ 'Ihat it is the opinion of this convention that a.q soon as the con>cn­ tiona of rune St.atP.s Rhall have ratifiP-cl thiq C:onRtitntion. tiHI TTnit~rl RtateR in Con· of the constitutional convention, a member of that Senate, and tho 1877. CONGRESSIONAL RECORD-HOUSE. &39

third Chief-Justice of the United States. Who was James .Madison, Now did Thomas Jefferson, when he signecl that certificate, know who brought the return message from the House of Representatives f wh.a.t he had done, or did the Senate, which passed the resolution di­ And who was Robert Morris' Did these men understand the use and recting him to sign the certificate statin!!' that he had "counted all meaning of language, and the force and effect of precedents "l the votes," suppose that that was something which they, in connec­ Do you think when this certificate was received by George ·washing­ tion with the House of Representatives, had just done themselves t ton, with his love of precise terms and accurate methods, that so gross There is another fact which renders the form of this certificate all the a blunder could have escaped his attention and failed to elicit from more significant. Only a year before the subject had been up in both him even so much as a comment t He had devoted his life to the resist­ Houses of Congress, had been freely discussed, and resulted in the ance of tyranny and the usurpation of power. Would he sit quietly by passage of a bill through this self-same Senate, providing for the ap­ and in the very first act of the new government see one man usurp pointment of a grand Qommittee to count the electoral votes, which to himself a power so important as this, one which was intended bill was defeated in the House. Could any inference be plainer than to be vested in the two Houses of Congress f It is said that the ab­ that, in the absence of all legislation upon the subject, this Senate sence of debate at that time takes from these precedents their weight and Mr. Jefferson understood that it was not only the duty of the as authority. Why, sir, the absence of discussion, of question, or of President of the Senate to count the votes, but that he had done that doubt it seems to me amounts almost to a demonstration that the very thing. power was taken for granted; and that the idea that any one but the At the fifth count, held on February 13,1805, Thorriru~ Jefferson was President of the Senate was to count the votes had never entered re-elected President and George Clinton elected Vice-President. Jef­ into the brain of mortal man. ferson, being in Washington, was notified of his electiou by a commit­ Sir, I have not the time, nor is it necessary to give all the det.:'tils of tee of the two Houses; and under a re3olution of the Senate the samo the nine successive counts of the electoral votes; but let us see how form of certificate was directed to be signed by the Vice-President the Vice-Presidents and various Congresses understood the matter. and sent to Mr. Clinton, which read: . At the second counting of the votes, which occurred on the 13th of Be it known that, the Senate and Honse of Representatives being convened in February, 1793, John Adams presided as Vice-President. One teller the city of Washington, * * * the underwritten, Vice-Prerident of the United was appointed on the part of the Senate, and two on the part of the States and President of the Senate, did, in the presence of the Senate and Honse of • Representatives, open all the certificates and cou11t all the votes. * * * the House. Their duties were defined by resolution to be, "to make In witness whereof I have hereunto set my hand and seal, this 14th day of Febru­ a. list of the votes as they shall be declm·ed." This was done, the result ary, 1805. ascertained and handed to the President of the Senate, "who an­ AARON BURR. nounced the state of the vote and the persons elected." Washington The sixth count occurred on the 8th of February, 1809, when James was re-elected tmanimously, and Adams by plurality. Washington .Madison was elected President and George Clinton Vice-President. was notified of his election by a committee appointed from the two The same form of certificate was again employed, reciting that- Houses; and Adams, having presided and announced the result, re­ The undersigned, President of the Senate pro tempore, did in the presence, &c:J quired no notification. open all the certificates and count all the votes, &c. In witness whereof .1 The third count occurred on the 8th of February, 1797, at which have hereunto set my hand and caused the seal of the Senate to be affixed, this­ John Adams again presided as President of the Senate, and John day of February, 1809. Adams was elected President and Thomas Jefferson Vice-President. This was sirrned by John Milledge, of Georgia. Ada.ms being present could easily be notifiecl of his election, but Will it be ciaimed that this, too, happened through inadvertence T Jefferson being absent the mode of notifying him became a matter Why, sir, it was at this very time that petitions were sent to the of significant action. The counting was done on the 8th of Feb­ House of Representatives from various towns in Massachusetts, re­ ruary, 1797. On the 9th the committee of tho two Houses appointed monstrating against the mode in which electors bad been elected in that to ascertain and report a mode of examining the votes for President State. These memorials were discussed in the House on the 2d and 6th and Vice-President of the United States, and of notifying the per­ of February. Mr. Randolph expressed the opinion in the debate that sons elected of their election, reported the following: "the electors were as much the judges of their own qualifications" as Resolved, That. the Secretary of the Senate be directed to give, by letter, to the either House of Congress was of the election of its own members; Vice-President elect, a notification of his election. and be said it appeared to him "as competent to the people of any On motion, it was agreed to insert Pre ident of the Senate instead of the Secre­ part of this country to prefer a petition to the electoral colle~es to tary; aml set aside the returns of any JUembers of Congress as to p,refer petttions On motion, it was a~eed to reconsider the resolution, and to recommit the report from the joint committee. to this House to set aside the qualification of electors.' Mr. Sed~wick reported, from the joint committee last mentioned, that the com­ A resolution was offered in the House sending the memorials to the • mittee on the part of the House of Representatives considered themselves dil!charged Senate and asking joint action on its part. from their commission. Mr. Jackson said he "hoped it would operate on the House to in­ The Senate then asked for a committee of conference, which was duce them to consider the propriety of providing some mode of here... granted by the House, and the committee appointed on the following after distinguishing between legal or illegal or surreptitious elec­ day. The result of this conference was that the Honse of Represent­ tions." atives assented that the Vice-President be notified as the Senate Mr. Ransom was "opposed to the resolution. The Constitution might direct. A resolution was accordingly offered in the Senate that having provided that each State shall choose electors in such manner he be notified by the President of the United States in such manner as the Legislature should direct, why might not the House' as well as he should judge proper. This was vot-ed down. The matter was interfere in t.he election of Senators f;" then referred to a select committee of three, and the following form The resolution passed the Honse. The memorials were sent to the of a certificate was finally reported and adopted, and the Vice-Presi­ Senate on the next day and were laid on the table there. .A.nd just dent directed to sign the same: two days thereafter a resolution passed that body, directing tho above Be it l"llown that the Senate and House of Representatives of the United States form of certificate, which required that the seal of tke Senate be at­ of America, being convened in the city of Philadelphia, on the second Wednesday tac~ed thereto. And on the following day in tho House, when a of February, in the year of our Lord 1797, the underwritten, Vice-President of the motion was maue to amend the Journal so as to show why one elector United States and President of the Senate, did, in the presence o.fthesaidSenate and House of R~presentati ·ves, open all the eertijicatu and count all the votes of the electors from Kentucky had not cast his vote, it was stated by members, '' if for a President and for a Vice-President; by which it appears that Thomas .Jeffer­ it was intended to fix a precedent to 7overn future proceedings it son, esq., was duly elected, agreeably to the Constitution, Vice-President of the ought to be done with great deliberation.' And the motion was Yoted United States of America. down, receiving but 20 affirmative votes. And yet we are naked to In witness whereof, I have hereunto set my hand and seal, this loth day of Feb­ ruary, 1797. believe that the Senate, right in the midst of these discussions, went JOHN ADAMS. on making certifir.ate of facts and affixing its seal, without so much as giving a thought to form, substance, or future effect of the prece­ Now, sir, did John .Adams, the" underwritten Vice-President of the dent. United States," who signed and sent that certificate to Thomas Jeffer­ The seventh count, had on the lOth day of February, 1813, resulted in son, know whether he had "opened all the certificates and counted the election of James Madison and Elbridge Gerry. And again, by all the votes 7" Or did he certify to it regardless of the truth' It direction of the Senate, "the underwritten, President of the Senate will not do to say that it was a mere formal matter this time, for it pro tempore," certified thot he did" open all the certificates and cozuzt had been a subject of action and discussion in the two Houses on three all the votes," affixed the seal of the Senate thereto, and sent the sa.me successive days, and the form of the certificate was the very thing to Elbridge Gerry to notify him of his election. This waa signed by under discussion. Joseph B. Varnum, of Massachusetts. The fourth count, had on February 11, 1801, resulted in a tie be­ On the eighth count, February 10, 1917, James Monroe and Daniel D. tween Thomas Jefferson and Aaron Burr. The election was thrown Tompkins were elected ; and again the same form of certificate, re­ into the House of Representatives, but who counted the votes T The citing that the underwritten, President of the Senate pro did certificate signed by Thomas Jefferson notifying Aaron Burr of his temp01·e, election as Vice-President contains the following: "open all the certificates and count all tlw votes," was directed to be made by a resolution of the Senate. Signed by John Galliard, of De it known, that, the Senate and House of Representati>es of the United States South Carolina. of America being convened at the city of Washington on the second Wednesday of February, A. D. 1801, the undet·written, Vice-President of the United States ana On the ninth count, February 14, 1821, James Monroe and Daniel President of the Senate, did, in the presence of the said Senate and House of Rep­ D. Tompkins were elected. It was on this occasion that a long debate resentatives, oprn all the certificates ana count aU the votes of the electors for Presi­ . took place in reg:ud to the electoral vote of Missouri, in which Mr. dent; whereupon it nppearecl, &c. Clay, Mr. Randolph, and others took part, Mr. Clay contending that In witness whereof I have hereunto set my band and seal, this 18th day of Feb­ ruary, 1801. it was the duty of the two Houses to count the votes, but that, as th() THO:M:AS JEFFERSON. vote of l\1issouri could not affect the result, be propoeecl.thAt tbP mat.- 840 CONGRESSIONAL RECORD-HOUSE. JANUARY 23,

ter be reserved and the result stated as it would be, both with and fact that Judges as in eli viduals would thus become committed in ad­ without the vote of Missouri. This was done, against the strenuous vance and by modes extra-judicial upon scores of questions liable to objection of Mt'. Randolph, and while be was drawing a resolution de­ come before them as memhers of the court, and you have the matter cLuing that the vote of Missouri should be counted the convention of before you in all its gra>ity. the two Houses acljourned amid hrreat disorder. The President was Sir, I shonlcl be glad to see my way clear to the ~npport of tho bill notified of his election by a committee from the two Houses, and he reported by the joint committee of the two Houses. But uolieving wasreqnested to notify the Vice-President of his election. that under a certain very possible construction it would embark us On the tenth count, :February 25,1825, the election was again thrown n pon a shoreless sea of doubt, without chart or compass to guide our into the House. John Quincy Adams was elected President by the course, while I realize the gravity of the Hituation a.nd the great re­ House of Representati res anll John C. CnlhoT~n Vice-President by a sponsibility now resting upon us, and while I accord to the framers m~jority of the electors. And again hy direction of the Senate, cer­ and supporters of that bill the purest and most patriotic motives, I tified to John C. Calhoun th3t he, as President p1·o tentpm·e of the Sen­ am not prepare(} to say that I can sustain it by my vote. ate, had opened all1he certificates and "counted all the votes." Signed But suppose all plans fail f Then, sir, I believe that from the very hy John Galliard, of South Carolina. necessity of the case, in the ausence of alllegi lation upon the suu­ Thus out of ten counts, covering a peri on of forty years, the Senate ject, we are thrown back upon that doct1ine, so often quoted, of Chan­ has eight times directed its presiding officer to certify that he had cellor Kent, one of the most eminent publicists and jurists of Amer­ •' opened all the certil1cates and cou11ted all the t:ote-s" and al wa.y.s wit.h ica. the assent and acquiescence of the House of RepresentatiYes. I know The opinion was given in moments of calmness, with no excite­ it will be claimed that in each instance the two Honl:!es appointed ment to bias or warp the judgment. It was born out of the clear tellers to tabulate the v~s and ascertain the result, uut do not wi~h brain and in tho pure n,tmosphere of a great j udicia.l mind. It reads: to repeat what I have already said upon that subject.. If this clerical 'rhe Constitution doe~ not express by whom the votes are to be counted anrl the work of the tellers would be iTtdilipensable, whether the two Houses or result declared. In tho case of questionableYotes and a closely contested election the P1·esident of the Senate counted the votes, t·hen their appointment this power may be important; and I presume, in the absence of all legislative pro: \i ion on the snbject, tho.t tho President of the Senate counts the votes and deter­ carries no significance; bnt the tinal certificate of the Senate cloe.s. mines the result, anrl t;hat the Houses are present only as spectarors to ~tness tho It is t.o the final judgment, the signature of the judge, the seal of the fairness and accuracy of tho trans:wtion, and to ~t only if no choice be made by court, that we look to see ~at bas been done in the case; and, sir, the elect{)rs. The House of Representatives, in such case, are to choose immedl· if there ever could ue such a thing as legi.lative construction it seems ately, which, I presume, may be while the two Houses are together, though they rna.Y Yote after they have retired, for the Constitution holds thClr choice to be valid t-o me these eight several findings of the Senate are entitled to great if malaus impos­ This plan would insure a prompt and certain decision of the case, and sible of su<·cess, then tho bo(ly-politic will be sick indeed, and will begrn to despair by parties already present. Under it the vote of no State coulU be of this experiment of men to govern the~elves. rejected without the concurrence of both Houses of Congress, and Sir, I am happy to believe that the distinguished gentleman who the objection that where the President of the Senate was himself a uttered these sentiments has said nor done nothing since inconsistent candidate he might recklessly and arbitrarily count himself in would therewith. But the telegraph informs us that on the 23<1 of Decem­ be removed. In fact, all tho objections that so important a matter uer last Governor Grover, one of the authors and finishers of the Oregon should be left, to the aruitrary will of one man would be swept away. fmnd, was serenaded at the Cosmopolitanl-lotel in San Francisco, and But it is said that it is impossible to adopt any such rnle now, be­ I believe salvos of democratic artillery greeted his departure from cause partisan interests and partisan feeling will prevent it. \Vell, that city to the national capit.al, and here, we are told, be bas been sir, if we are to enact only such legiislation as partisan interests or received and fet.ed, if not openl.v defende(l, in high democratic circles. partisan feeling shall dictate, we might as well abandon the attempt I am gln.d to believe however that many eminent democrats regard first as last. Still I shall be glad if any plan can be devised upon this whole matter only with llorror and disgust. which we can all agree. In the present critical posture of public Sir, show us that the much-uerated returning board of Louisiana affairs we should go to the utmost verge of conciliation to agreo upun bas ueen guilty of anything so indecent, so urazen, so monstrous as a remedy. But in seeking such remedy 'it may ue better that we that, and I care not for la.w, precedent, or authority, outraged jnstico bear the "ills we ha.ve than fly to others that we know not of.11 will rise and spurn it from its presence with contempt. The Supreme Court having power only to detormine judicial ques­ And if Rntherforcl B. Hayes woulrb "count.;" the purse, intimidation will extort froQl the fearsof the electors what and when the passive verb "connt" following "votes'' ru~ its nomi­ corrupt appeals to their selfishness may have failed to sednce them to native is not followed by the words ''by birn" as expre sive of his yield. Many men of the constitutional era dreaded the ultimate fate being the instrument for counting the votes. If langnage can convey of free institutions from this union of patronage with the military or excluue meaning, it would seem that this conveys tho idea of a power in the hands of a President, and that he would finally command counting by some other than the President of the Senate, aud posi­ his own continuance in office or dictate his successor. tively excludes him as an actorin the count. Five words, "nn(l then These apprehensions su~gested a variety of propositions·by which count the votes,'~ would have made him the counter; hut. the nse of the evils might be averted. · the seven, "and the votes shall then be counted," clearly excludes By Mr. Randolph's odgiual proposition, the Presi0. Hence it was determined, in order that these things should not be So also Mr. Charles Pinckney. Mr. Wilson, (afterward a judge of done in a corner where fraud or illegality might defeat the will of all the Supreme Court,) preferred the ult-imate election, on failure of the States, that the certificates were to be sent to the President of one by electors, by the National Legislature, not by the Senate; and the Senate and opened in the presence of the legislative guardians so Mr. Randolph. (Ibid, page 1492.) of the Federal Executive. Mr. Pinckney subsequently objected to the Senate as the elective ~esides, when the cenvention first proposed taking the elective body, because the President would "combine with the Senate against power from Congress and giving it to the States, it required the re­ the House of Representatives." This view was also pressecl by Mr. turn of the certiticates to be made to that body to which it confided Mason, who said it fixed "an aristocracy worse than absolute mon­ the elective function in the contingency of its being found, on connt­ archy;" and again by Mr. ·wilson, who said "the President will not ing the electoral votes, that there had been no election. It vested the be the man of the people, but the minion of the Senate," and that primary right of election in the electoral colleges, with a contingent the Senate could so contrive as to secure the election of President by elective right in the Senate, limited on the event of their failure to themselves. Mr. Hamilton expressed the same opinion. make an election. It would have been folly to leav-e to the colleges a After much discussion, it was ~nggested by Mr. Williamson that the :final decision as to whether the contingency had arisen on which that election (in case of failure to elect by electors) be made by the Leg­ elective right resulted to the Senate. Their action was required to islature, (that is, Congress,) voting by States. .Mr. Sherman suggested, be laid before the Senate in order that the Senate, and it alone, should as preferable, the following: decide whether the event had happened upon which the Constitution The House of Representatives shall immediately choose by ballot one of them devolved the elective duty upon it. To have left it to the electors to for President, the members from each State having one vote.-3 Madison Papers, decide would have been too absurd to be conceived in the minds of pa:;:;es 1510, 1511. the Constitution-makers. Colonel Mason liked the ot.her mode best, as lessening the aristo­ This proposed article of the Constitution therefore required the cratic influence of the Senate. (3 Madison papers, page 1511.) direction of the certificates to the President of the Senate, and This passed by a vote of ten States to one. the counting there, for a double purpose: first, to protect the exec­ On the same day, the word3 in the clause first above cited "in that utive chair from an intruder through the unchecked and arbitrary House" seem to have been stricken out; and the words ''in the pres­ action of the States or of a single State, or of the officers illegally or ence of the Senate and House of Representatives" were inserted after fraudulently speaking for the State, and, secondly, to assure to the the word ''counted." But these words were tacitly transposed, so Senate its constitutional function of election when the contingency that the clause read thus : on which it depended in its judgment arose. Its judgment, not the The President of the Senate shall, in the presence of the Senate aml llonse of judgment of any other body, could decide upon its prerogative and Representatives. open all the certificates, and the votes shall then be counted.­ duty. To have trusted it elsewhere would have made the Senate de­ Journat of Oongress, page 337. pendent on another in respect of its constitutional and independent duty. Now, compare the clause as it thus stands with the clause as When therefore the certificates were transmitted and opened, it be­ originally r~ported, and we will readily see the revolution effected by the change of a few words. comes proper to inquire what powers and duties were expected to attach to the Senate and President respectively in regard to them. First. The certificates are no longer required to be opened "in that its House;" that is, the Senate. · Did the convention propose the Senate or its President as the deter­ minant authority as to these votes f Second. The votes are not to be counted. "then and there;" that is, in the Senate. When this clause was originally proposed, the convention bad not uecided to make the Vice-President President of the Senate. It did Third. By the amendment to put the words '' in the presence" &c., so after this clause had been amended and was finally adopted. Hence after the word" counted," the clause would have read: we are to interpret the purpose of this clausewithontreferencetothe The President of the Senate shall open all the certificates, and the vot-es shall then office of Vice-President or as being affected by its dignity. Tho be conn ted in the presence of the Senate and the House of Representatives. power this clause j!l'anted was to the President of the Senate as such, This might have left room for the inference that the opener of the and not because the Vice-President was afterward made ex officio its certificates wa:; to be the counter of the votes; but the change was President. The power was conferred by reason of his presiding in mado so as to require the opening to be in the presence of the two the Senate-attached to that official function-whether performed Houses, and then the counting as a distinct act was to follow. by a Vice-President or a President pro tempore of the Senate. Four~h. In the original as in the su~s~tn~ed clause, the change of But who is the President of the Senate Y Eitber the Vice-Presi­ phrase m the :first and second branches 1s s1gmficant. '' Tl1e President dent, an alien to the body, put upon it as its presiding officer by the 1877. CONGRESSIONAL RECORD-HOUSE. 843

Constitution, or one elected by itself to act under its mles, and exe­ clause as it was finally adopted; for if I have shown the presiding cuting, but in submission to, t hem. officer had no power to count except as the minister of the Senate, Now could it have been intended thnt such a one, either an alien it cannot be claimed he has greater power under the clause as it now to it or its creatme, was intemled to debar the Senate of its dut.y at stands, when this House is brought in us a new clement in the prob­ his will and shut its voice :from protest against his illegal or fraudu­ lem of related powers. lent miscount f In the face of the proclaimed fears of the senatorial It is obvious that a jealousy of the power of the Senate existe:l in oligarchy, so patent in the debates, was it intended to exaggente the minds of mauy of the ablest men in the convention. A majority these by vesting the final determining power in one man, and he per­ of the Senate, in 1787, might represent but one-third of tho people haps interested as Vice-President, either to continue in office or to of the country; in 1876, but one-fifth. To give the ultimate elective succeed to the Presidency, or in another man who was a mere creat- power in a presidential contest to the Senate~ and the decision of ure of the denounced oligarchy f . when this elective prerogative resulted to it, would have been to It cannot, then, be contended that as the clause originally stood it lend weight to the intluence of an oligarchy against the popular will was designed to make the Vice-President or President of the Senate expressed through the electoral colleges. And this view was, as we the final arbiter to count or reject the electoral votes of the States. have seen, urged with great -emphasis in tbedebatesof the convention. He opens the certificates, and his functions cease. He is the medium After much discussion, us already shown, the convention, with re­ through which the papers reach their destination. He opens them, markable unanimity, {Delaware alone voting in the negative,) adopted not as an independent officer, but as President of the Senate, because the plan of giving the ultimate election of President to this House, they are directed to him. He is the custodian of them for the Senate, as the representative of the people of the States, instead of to the and when opened "in that House," it was int~ded that they should Senate as the representative of the States through their Legislatures. come into its mstody and under its control, and to be counted under At the same time it left to the Senate the ultimate election of Vice­ its order, for there, it is the master, and not he, whether he be Vice­ President, which was dependent, originally, on a much more remote Pre ident or its President pro tempore. The direction of the paper to a contingency than that on which the power of the House depe!lded presiding officer of any body, to be opened by him in its session and for electing the President. there counted, put,s t,be control of the paper iu its hands and takes it On the same day that this radical change was made, and obviously from him and gives the count and its results to its supreme decision, as a part of the same line of thought, the opening of the certificates excludjng him entirely except as its minister. Any other construc­ and the counting of the electoral votes in the Senate was changed tion would place either House of Congress at the feet of its own pre­ into an opening of them " in the presence of the Senate and tho siding Clfficer, elected by it., or, worse than this, at the feet of the Vice­ House of Representatives," anu a provision that the votes be then President, not a member of the body and not elected by it nor sub­ counted. ject to it, and would make the mere organ through which it commu­ Now, it is very clear that the function of guardianship of the elec­ nicates with the outer world its master, and not the subject of its tion, which was a35igned by the original proposition to the Senate supreme will. Like the senses by which man is cognizant of the alone, was by this change confided to the Honse of Representatives outer world, and which are his servants, and not his masters, the Pres­ in concurrence with the Senate. The function of tho Senate, w hic1.t ident of the Senate must submit to its order and yield unquestioning was exclusi vo under the former, was made concurrent and equal with obedience to its mandates. that of the House under the clause as adopted. If, therefore, the rea­ Any other view of the functions of the President of the Senate soning already pursued be sound, by which the supreme control of the conflicts with the obvious meaning of the language of the clause. count was regarded as intended to be vested in the Senate, and not in If he was to be the arbiter, not as presiding officer of the Send>te, but its President, under the first form of the clause, it will with increased as an officer distinct from that body, why was he required to open the force conduct to the conclusion that untl.er tbe clause finally adopted r.ertificates in that House Y Why were the votes to be .counted the.n the powers "Of that officer are excluded in favor of the guardianship and there Y They were sent to him because he presided in the Senate, confided to the Senate and the House of Represent:1tives. which was intended to count them in its House, where it sat and he And not only so, but this conclusion is enforced by another consid­ presided. Now I put it to any rational man, oan there be any higher eration. There might be a plausible pretense that the President of e...-idence afforded of the subordination of the man to the body than the Senate, usually elected by it, might have some power for the ex­ in det~ignating him, not as Vice-President, or in any other way than clusion of the prerogative of the Senate, over which he presided; but as President of the Senate, subject to whose rules alone coulU he ex­ no such pretense would avail in his favor against the prerogatives of ercise any function, and of which he was the servant, and over whose that House by whom he is not elected, over whose procedure he has members he could exercise no authority except under its regulations T' no control, and with whose organization he bas no privity. If, there­ To suppose such a man was intendecl to have the power of an auto­ fore, the President of the Senate, as its servant, was intended to be crat in a House where he was a servant, and to be a supreme arbiter subject to its mastery, under the first proposition, a fortiori he can where be was subordinate, is the extremity of delusion. claim no controHing power against this House, whose servant be is Again, if hisillegalor~audulentact was final, what function had the not, and to whose proceedings he is an utter stranger. Such a claim sitting Senate but to witness his wickedness f What motive can be as­ against this House by the presiding officer of the Senate is so absuTd signed for its presence unless we attribute to it the power of preven­ that its assertion would be a :flagrant usurpation. tion, as incident to and consequent upon the detection of illegality But another view is most important. The Senate in the original and fraud! Either his count was conclusive or it was not. If con­ proposition had the supreme control over its President for anOther clusive, what sense was there in having a Senate to see what it could reason, that the decision of the contingency upon which its resulting not control, to detect a wrong it could not prevent! If not conclu­ elective prerogative depended would otherwise have been in yhe power sive, then it was because his action was placed under the control of not of itself, as it should be, but in that of its own creature, or of the and subject to be avoided by the Senate as tbe real guardian of the Vice-President, most probably interested in the result. The same ar­ integrity of the election; and if this be true, then the function of the gument, and with stronger force, applies to the House under the President of the Senate is purely ministerial, and that of the Senate clause as finally adopted. The resultant elective power as to the was supremely controlJing and directory. He was intended to be its President is in this House. It is to be present at the opening and servant, not its master, in this matter, and the Senate was designed counting, not only as a co-guardian with the Senate of the election, to be the supreme determinant arbiter upon the facts as developed but to decide when the contingency arises for assuming the high by the certificates coming through him as its medium, and to it, as the function to which the Constitution calls it in electing a President. 1·eal body to count the electoral vote, to decide upon the result, and The Senate is to be present to decide when the occasion arises for it to assume, if the constitutional contingency arose, the resulting pre­ to assume the duty of electing the Vice-President. The idea that this rogative and duty of electing the President. The creature of the elective prerogative of the Senate is at the determining will of its Senate's appointment cannot bo made the master of its will, nor deny pJesiding officer is absurd; but how much more so that upon tho to his creator its ultimate power of election,. by his edict against its pivot of the arbitrary dictum, of this mere creature of the Senate the own decision. Such a conclusion is against the fair consttuction of elective prerogative and duty of this House should turn ; that it should the language of the clause, contrary to all the analogies of the Con­ be denied its constitutional power by his edict, and tha.t before his Eltitution, at variance with the tone of the debates in the convention, judgment the House should abdicate its power and tlecline to do its :md an assumption for the "one-man power" of a prerogative against duty under the Constitution; that an alien to its procedure, appointed the wjll of the representatives of the States in the Senate too irra­ by another body, should give law to this House and control its own tional and monstrous to be atttibuted to the Federal convention. sense of duty; and, in fine, that this House, based on the will of the Nor is the hypothesis of a concurrent power in the President of the whole people, should be controlled in its constitutional power by the Senate with the Senate more rational. For while, if they agreed, no fiat, not of the oligarchy of the Senate, but of the creature of that oli­ question could arise of relative authority, yet suppose they disagreed; garchy, is too preposterous to be believed as having been within the suppose he said "count," and the Senate said no, which would pre­ purpose of the wise ruen who framed our Constitution. ;vail f The decision of tbe creature or his creator¥ If his prevaile

President or as Vice-President, the person voted for who bad a ma­ room. It means radically (prre and ens,)" being before one." It indi­ jority of all electors appointed, and the highest vote, was Pre ident, cates in all legal procedure a supervision by a present superior, ono :mu be who had the next highest vote of the electors, though not a prompt and reatly to control, to guard, to aid, and to defend. Everv­ majority of the electors appointed, was Vice-President. And thus it t.hing done in tho presence of a conrt is unuer its protection antl coll­ happened that John Adams was the first Vice-President., though not t.rol ; even the pre ·ence of :t witness to a testator, or of a. testator t.o receiving a majority of the electors appointed. the witnesses of his wiJl, is intended as a g'1:ud, protection, ancl Now, the argument fi·om these provisions is this: If the President defense against any imbecility or mistake in the n.ct, or fraud iu its of the Senate conld not exclude the elective power of the Senate as procurement. · to Vice-Presiuent., depending on so remote a contingency, a fortiori he In that sublime appeal of the leader of the Hebrew exodns to the could not do so as to the House in respect of its election of the Presi­ God of I rael, the same sen e is fouml: "If thy pre ence go uot with dent, depending upon contingencies so proximate and probable. me, carry us not n p hence!" This did not refer to the onmi presenco These views seem to be conclusive against any determinant power of the Deit.y, but it meant presence in the sense of t.be tlivine super­ of the President of the Senate under the Constitution in the matter intendence, providence, direction, and care. It meant that wom!rous of th~ electoral votes or of any function in respect thereto, except to pillar, tho manifestation of Jehovah's presence; the sh:ulow of his receive and open the certificates sent to him, and through him to the wings by day, the light of his face by night; whose majestic move­ Seuate and House of Representatives; and tha.t any othl'r act he may ment guided their march, and wbeu aud where the cloud a.bode then perform is purely ministerial, and under the supervision and subJect and there was the signal for t.beir rest. llnt, whether moving or abid­ to the control and direction of the two Houses of Congre s, in whose ing, ever the divine symbol of supreme law enforceu by resistle88 presence by the Constitution he must open the certilicates and can­ power! not do so elsewhere. It may be then taken, that the use of this word in this clause IDeaJ13 POWERS OF THE HOUSES. an activo, living, vital, controlling, and directing supervi ion of tho Thus much being concluded, we approach t.be next important in­ whole procedure. If it does not mean t.his, it means no more tban tho quiry: \Vhat are the powers and dut.ies of the two Hou es, respect­ casual or curious presence of by-standers, or of the crow< 1in the gal Ieri es. iv~ly and conjointly, in regard to the presidential election, aud in It cannot be that the word finds its satisfactory interpreta,tion iu tho what manner must they act t capacity of either Honse to witness a mistake it cannot correct, an ,. My first proposition is that the functions of the two Houses are not illegality it cannot forbid, a wrong it cannot rectify, a fraud it can­ merely ministerial, but are protective; and therefore must be in their not frnst.rate. Suppose the President of the Senate should miscount, na.ture quasi judicial, in the same sense in which a1I powers are which (if by hypothesis he were to do the. counting,) or should open falso require discretion in the decision of questions of legal right arising or illegal certificates ; or prouuce those forgeu by himself; or proposo on a given state of facts. to count ineligible electors; or to dechue an unconstitutional Yote This may be established from several considerations. of electors; or an ineligible candidate elected, must each IloUS'.} wit­ First. If there was no room for controversy, if tho mere question of ness these things in mute submisHion t Or suppose the certificate on its adding up numbers and deciding whether the result was equal to a face shows illegality, must it be accepted as valid f Or suppose on majority of the number, three hundred and sixty-nine, if the paper pre­ opening it a paper is found dated after it pm·port to have heen sented proved itself and the electors returned as voting were de jure sealed, is there to be no relief ? If none, then the constitutional convo­ entitled to vote, if the persons voted for were de ju1·e eligible, if the cation of the two Hou esis a mockery, and only compels them to giYo conductors of the election and of the returning process were infallible their countenance to lawlessness, and the sanction of their silent an1l and immaculate, then it might be conceded that the President of the acquiescent presence to frauu and wrong. Upon such a constrnctiou Senate or a banker's clerk m'ight do the duty of declaring the elec­ the majesty of the presence of the two Houses invoked by the Con­ tion of President. stitt?-tion becpmes a solemn farce, a dumb show, an empty pageant., But the convention knew full well that none of these hypotheses a m1~emble nmmmery. were or could be true. It did not even trust the President of the Snch a conclusion cannot be sotmd. A fair andjust interpretation Senate to break the sealed certificates save in a presence where be of the word gives full power to the Houses to control the couu t, to could not perpetrate a fraud. It did not think it enough to guard this protect the people's voice from illegal or fraudulent schemes, and to important ceremonial by a pre ent Senate without a present House act as the constitutional guardians of the executive office from the of RepresentatiYes. It debarred certain persons from being electors, designs and machinations of wicked men. For the in tant you give and limited their field of selection hy leaving the door of eligibility to the word "presence" the sense of any supervisory guardianship, to the Presidency only partially open. It well knew that laws were it embraces all needed power to defeat fraud and prevent illegality. violated by corrupt and interested men in conducting elections and The wedge of power once admitted suffices to rive asunder all tho making returns thereof, and that under color of law frauds might outer covering of inward rottennPss and lawlessness. vitiate the results. From these evils it had provided a self-protect­ 4. Bnt this will further appear from the phrase, "and the votes ive power in the or~anization of each of these same Houses whom it shall then be counteu." Let this clause be analyzed. summoned to be present at the moment when the election of the .First. The 't'otes. What is a vote f It is the voice of one devoten Chief Magistrate was to be decided. Are we to presume that at this to a purpose. It is therefore the true, the unfeigned declaration of supreme crisis in national aftairs the con\ention meant to leave the choice. Whose votes f Thecontext answers, the votes oftheelectors. resort to these hazards with no other guards than lookers on, who But who are they f A~ n, and C claim to be, but so do D, E, and F. could witness, but with no capacity to protest or to prevent a fraud Which shall be counted l Or suppose only A, B, and C claim, and A or illegality patent to everybody, including themselves; that if an is ineligible, that is, cannot give a vote; or suppose they vot.ed viva incompetent elector voted, or an ineligible person received a majority voce and not by ballot. Must they be counted? Or suppose they met of votes, or the State law for the election and returns was flagrantly in 'Vasbington, and not in their State, or fail to sign and certify and violated, or was stained by such frauds as excited the most indignant seal, or are appointed otherwise than the State Legislature directs, abhorrence, there was, no cure and no relief! must the count be made t These considerations exclude the conclusion that no remedy for In each one of these cases the questions confront some determinant these evils was intended. And it is, as already intimated, clear that power, who is to count the votes; which are the votes f and who the framers of the Constitution did use language which was intended are the electors f Unless there be such a power the procedure balks by them to furnish such a remedy, because, after the expPrieuce of at the start, and breaks down. If there be no such power in the. the contest in lROl, which threatened the very existence of the Union, President of the Senate, as bas been shown, it must be in the Senate the same language is re-adopted in the twelfth amendment as was and House, or the Constitution is and has ever been a failure in de­ 11sed in the original Constitution, a fact only consistent with the idea claring that votes shall be counted and providing no one-to count that it was believed in 1804 that those words justified the practice them. The conclusion is inevitable that the two Houses are to count, prior to that time and sanctioned the precedents which had recognized and must determine what shall be counted as votes and what shall this remedial power, as will be hereafter shown. In other words, not be counted. the adoption of the same language in the amendment of 1~04, after Second. When the certificates are opened by the President, the its construction in the precedents prior to that date, gives a consti­ clause declares thu.t then the count begins. They are opened before tutional sanction to the interpretation of the language involved in the Houses for what T That then they may be counted; and can be these precedents. · counted by none except t.be Houses, or those whom they may appoint Second. Without going into detail, it is clear that the addition of as ministers for the purpose. the presence of the House of Representatives,afterthejPalousy which Third. "Counted." T.bis word bym_any seems to mean merely the had been expressed of the Senate, can only be explained upon the mechanical process of numeration. But this is far from satisfying tbe ground that it bad some active function to perform, aue been some reason to argue for a joint dung," &c.; "I count not myself to have attained," &c. In all these and act; though, as tl1e constitutional definition of Congress is that it is like passages the notion of mere enumeration, proper for the counting a department "which shall consist of a Senate and Honse of Repre­ of like things, is lost in the largermeaningof a discriminating estimate sentatives,'' (C. U. S., article 1, section 1,) that argument would be of unlike things, whereby one thing may in moral weight overbalance fully avoided. But when the c1ause and its history concur in indi­ a thousand lesser things. cating a convocation of two bodies, in their nature, constitution, and Thus it appears that the terms of the clause fairly interpreted rules of action wholly distinct; when the reason is that principle so 'lead to the conclusion that the votes must be counted by the Houses, deeply seated in our system of educing all its unity out of the con­ and with such discretion, discriminatbn, and judgment that there­ current majorities of separate bodies, rather than from a unification sult of a. constitutional election of President shall be assured. of separate bodies to bring out an enforced and false harmony; and Conclusive as these views seem to be, there is one other that should when this conversion of the two into one would destroy the double be here prominent.Iy noted, though it has been referred to previously. guardianship of two co-equal protectors of law and right, and make One great reason for the guardianship of the presidential office by a single sentinel, in whom the senatorial equality of the States would the two Houses of Congress, as we have seen, was because each had be lost in the overwhelming influence of the more numerous repre­ a resulting elective power in case of a failure of election by the col­ sentatives by the House of tho popular majority, we think it is too leges of electors. This power, limited upon such a contingency, clear for doubt that the two Houses must act through their sepa.rate might, be defeated were it not guarded by the House entitled to it organizations in their judgment upon the presidential election. and charged with the duty of its exercise. It would be contrary to Second. When it was at one time proposed to elect the President all good government, as well as against all legal analogy, to excluue by" ballot of the Legislature" (that is, by Congress) it was so obvi­ the bolder of such a resultant power from a guardianship of the pro­ ously intended to be by the separate action of the two Houses that cedure on which it depended, or to leave to every other than itself a member of the Convention proposed to prefix the word ''joint" be­ the decision whether or not the contingency had occu~ed callin~ for fore the word "ballot," in order to bring about the merger of the two its exercise. in their elective procedure. It was objected to because" depriving The'' presence'' of each House, therefore, in the full sense which the States represented in the Senate of the negatire intended then~ in that has been attached to that word, and the power to "count," in the House." It was at first adopted. (3 Madison Papers, 1417-'9.) But sen e of discriminating what ought and ought not to be counted, is subsequently it was rejected by a vote of eight States to two. (Id., essential to tbe contingent resultant elective right of each in case an 1498.) Now, if the generic word" Legislature" (Congress) so clearly election by electors fails; that is, of the House of Representatives to imported the separate action of the two Houses that the express elect the President, aud of the Senate to elect the Vice-President. word "joint" was needed to .convert the distinct action of the two Thus much bas been said in advocacy of the prerogative power of into a single act of one body made out of the two, a fortiori, it is clear the two Houses. Dut we may advance to another position. The that the mention of the two Houses by name cannot import, but ex­ Houses have not only the power, but it is their constitutional dtttJJ, cludes, the idea of the joint action of the two as one body. not a matter of option, but one of obligation, and not to be evaded, Third. There is another reason, which will be more dwelt upon here­ to take care that the procedure in the election of President shall be aft.er, that, as the resultant elective prerogative of the two Houses const.itutional, according to tbe laws, State and Federal, and tbe true respecti>elf was a strong motive for the presence of each to guard and fair expression of the will of the States. The powers of guard­ its own distinct right from being affected by the decision of the result ianship are reposed as a trust to be executed to the eudfor which they of the action by t.he electoral colleges, that motive demanded that were granted; and tho constitutional integrity of the executive de­ the decision should be made by the separate bodies, and not by one partment must be defended from all illegal and fraudulent attempts body, constituted by a merger of the two. to palm upon the country an intruder, whose usurpation of the office Fourth. One other reason may be stated. In the whole history of under such auspices is as perilous to the peace as it would be destruc­ procedure by the two Houses under this clause- botb have always tive of the rights of a free people. acted separately, and at no time has the merger of the two in one been adopted as the constitutional mode of their action. ARE THE ROUSES EQUAL L~ POWER. It is then certain that the two Houses must act separately in their The power and the duty of the two Houses being fixed, the ques­ arbitrament of this presidential election. tion next arises, are they equal in power f That the two Houses were intended to be constituted co-equal and MUST. THE HOUSES CONCUR IN COll."TTNG OR IN REJECTING A VOTE 1 co-ordinate guardians of the legalit.y and fairness of the election This being settled, another question arises. The two Houses will can admit of no doubt. If t.he clause as it now stands had been that either agree in judgment or difter. If they agree, unity between the first proposed, this conclusion would result from the mention of both, two arbitrators leaves no room for controversy. It is as if there was without a hint of a purpose to give to either a paramount power, but one. or superior dignity to tho other. Their constitutional relations to But suppose they differ. If two equal powers diverge in judgment, this high duty are those of equal authority and influence. that of neither can prevail, else they are not equal. But t.his becomes the more conclusive in view of the historic facts How then is the point in judgment decided 7 We answer, the affirm­ already referred to. The jealousy of the influence of the Senate, as ative proposition submitted is lost and the negativA prevails. This tho representative of equal States, with no regard to relative popu­ is obvious, and is sustained by numberless analogies, which will occur lation, suggested the summons of the House, as the representative to every one. of the States according to their population ; and as, in the electoral It is then obvious that the solution of our difficulty depends upon colleges, the two elements thus manifested in the separate branches the nature of the question in issue. Whatever is proposed to be done of the legislative department were incorporated into the elective cannot be done unless both of the equal arbitratm:s agree, and it will body, so it wa.s decided to have both present, with that quasi-judicial only be done when both concur. • authority by which the election was to be determined and declared. ·what then is the question submitted to the two Houses 7 The prox­ To have given to either a paramount authority over the other would imate question is this: Who is elected the President and Vice-Presi­ have oefeated the purpose to combine the separate voice of each in dentf ihe judgment upon the election, and woulu have made the amend­ The Constitution answers the question in these words: "The per­ ment by which the presence of the House as well as of the Senate son having the greatest number of votes for President shall be the was required a meaningless device. . . President, if such number be a majority of the whole number of But if either was intended to be paramount., which was itf Which electors appointed," &c. one has the Constitution made the superio1· f The one whose sole The Houses most determine what person has the greatest number presence wa.s unsatisfactory or that whose presence was required in of votes and he shall be President. What votes f Of electors. \Vho order to quiet the jealouRies engendered by the proposed single are the electors f The Constitution nnswe:rs, those whom "Each power of the Senatet If the Senate was C.esigned to overrule the State shall appoint, in such manner as the Legislature tbereof may voice of the House, brought in from some supposed need of its pres­ direct," so as he be neither a "Senator or Representative, or person ence, w by invoke its presenco at aUf And if the House was to over- holding an office of trust or profit onder the United States." How 846 CONGRESSIONAL RECORD-HOUSE. JANUARY 23, and where shall these electors, SQ a.ppointed, vote i The Constitution :my person President of the people of a great union of commonwealths. answers, by ballot, and in the meeting in t}Jeir respective States. To say that every package which any man may direct to the Presi­ How shall the vote of these electors be signified f The Constitution dent of the Senate, purporting to be and clad in the garb of an officia.l answers, by distinct lists made by them of tho }JE~rsons voted for, of paper, is to be received until pronounced against, is to invert the the number for each,· which lists shaH bo signed, certified, and trans­ forms of legal precednre and give efficacy to every ingenious fral1ll mitted by them, sealed, to the seat of Government of the United States, and forgery Lecanse there is a failure of proof that it is not corrupt directed to the President of the Senate. How do they come to the and is not genuine. knowledge of the two Honse f The Constitution answers, "The Bnt this argument is sought further to be enforced by a depreca­ President of the Senate !:!hall, in the presence of the Senn.te and the tion of the effect of the contrary doctrine upon the right.s of the States House of RepreAentatives, open all the certificates and the votes shall to be heard in a presidentin,l election. I am not insensible to such ::m then be counted.?' appeal; but it is vicious in its logic, however commendable tho im­ These are the steps by which the votes of the States come nn

1·ecurred to, that the presence of the House was made requisite be­ of election in its ·own hands, decide against a vote; and so the Sen- cause the Senate might be ruled by au oligarchy, a majority of ate. . States being possible with a popular vote of eight millions against This is more plausible than sound. The great fnnction is electing thirty-two millions, (or as one to four,) and it was desi~ued to check the President; the Vice-President is of inferior consequence its power by the popular majority represented in the House. But if If the Rouse, representing population, and in which the populous the Senate may vote in one, whom the House would exclude, an oli­ States per capita ·should decide to reject a vote, in order to gratify an garchy-which the convention meant to check by the power of the ambitions desire to elect a President, it would at once occur to its people-will triumph over the popular will and trample upon the members that in its elective action the large States shrink to the size rights of the people. of the small; that on the procrustean bed of equal sovereignties the I repeat, the pnrpose was that none should enter the Presidency on giant New York stands in equali ju1·e with the dwarf Delaware, and any title not certified by the con<:urrent sanction of both Houses of thus the interests which decide on the count are dissimilar from those Congress. • which would elect. This will be made more conclusive by recurring to the second cause And besides, the populations '30 potential in the Honse would be the for the presence of the two Houses, to which reference has been made. same which are so potential in the colleges; and it would be rare that That cause was the prerogative vested in the respective Houses to to defeat a fair and legal choice by electors so likely to be in unison elect a President and Vice-President if an election by the colleges with their own views, the same interests would seek to take it to failed. tbemsel v-es when their power as populous States would he decreased Nothing is more reasonable or better sustained by ~11 the analogies to an equality with that of the small States. of the Constitution, and of all law for the distribution and bal­ It might be contended with more plausibility that the Senate would ance of powers than that, where a power is vested in a body coupled be interested to throw the election into its rival Honse, in order to de­ with a duty, there is an implied power in that body to assume its ex­ feat the will of the large States, so great in the colleges, and give force ercise without let or hinderance from any other authority. There to State equality in the election by the House. must be autonomy, or there will be such a dependence as will make But this seems to be too refined a suggestion to fit the condition the required power nugatory. of tbin~s, probably existing. While the equality of States is repre­ In the original Constitution, as I have already shown, the House sented m the Senate and operates in an election by the House, this is was authorized to elect a President if certain contingencies happened, a single feature of likeness with all others dissimilar. the Senate to elect a Vice-President if certain more remote contin­ The House is the direct representative of the people. The Senate gencies happened. It is, therefore, obvious that if the determination is that of the State Legislatures. The House is immediately sensi­ of whether the contingency had arisen in either case depended upon tive to popular sentiment; the Senate only mediately so. Ths House the absolute will of either body, other than that which is required to is also fresh from the people ; less so, it is true, than tohe colleges ; bn t assume the elective function, a paralysis of its power and a defeat the Senate has only one-third of its members who represent popular of its duty might result from the caprice of one not vested with the feeling through State Legislatures as freshly as the House; one other power nor charged with tile duty. third four years, ancl another third six years remote from the people's Hence, if the Senate bad continued, as first proposed, to be the sole influence. In the election, the House represents the mass of the peo­ arbiter of the electoral procedure, after the elective power was given ple of each State, though by an equal vote with all others. The to the House in case of a failure of the colleges to make an election Senate in decision upon the election speak for the legislative organ­ of President, the Senate might have defeated at its arbitrary will this ism of the State, with only a remote sympathy with its people. power in the House. And so as to the Senate power to elect a Vice­ Therefore it is not probable that for sinister purposei the Senate President, had the House been made sole arbiter of the electoral pro­ would be tempted to defeat an election by electors to secure a Presi­ cedure. But the presence of both served and was intended to furnish dent who would be dependent on its great rival for his election or to to each Honse a self-protective guardianship of its own resultant secure to itself the empty honor of electing its own presiding officer elective function, and t,o enable it freely and without being subject with the title of Vice-President. to the capricious will of the other to enter upon the discharge of its Looking, then, to the reasons for the presence of the two Hom~es constitutional duty by the exercise of its constitutional power. as a self-protection to each of its own resultant elective power and For it is very clear that the power to decide whether or not a.n elec­ to the effects of the two theories upon the motives to their action, tion has been made by electors may by unscrupulous men become there is everything to sustain and nothing to impair the strength of equivalent to the power to elect, and that the power to count votes the conclusion that no vote can be counted but by a concurrent sanc­ may be made superior to that of votin~. The question who elects tion of the two Houses, and that any vote wanting this concurrence in such a state of things may be less Important than who counts. must be rejected. The men who manipulate the poll-books or the ballot-boxes, and ren­ It is singular that two apt cases have occurred in our history for der a final decision on the res.nlt, if dishonest, may usurp the power of the illustration of this branch of the subject. . suffrage and turn a result favorable toT into an election of H. In 1825 the colleges elected a Vice-President· by a large majority, To avoid this, in the case under cliscossion, the presence of each House but failed to elect a President. In Ul37 they elected a President, but as the guard of its own power, as the ultimate determinant of its own not the Vice-President. In the former the Senate might be inter­ duty, was required. But all this would be unavailing if tile power of ested, as it could not possibly have any elective functions to defeat either body to elect depended upon the counting of certain electoral the contingent right of the House by a count favorable to one of the votes at the sole will of the other Honse ; for as the contingency on candidates. In the latter the Honse might have the same interest which the power of the House under the original Constitution de­ against the right of the S~nate, and on the theory we are combating pended is the failure of some person to get a majority of the electors, either could have destroyed the other's right by a count of false or all that the Senate would have to do to defeat the power of the House illegal votes. But on the theory we sustain this would have been im­ would be to decide to count spurious votes for its own favorite, which, possible in either case, for it is spurious counts which defeat the con­ ex hypothesi, would avail to count them, despite the dissent of the tingent elective rights spoken of; and, as no count can be made .but House. by concurrence of both Houses, the House, whose right was jeopard­ To a small extent, the same power might have been exerte(l by the ized by the jealousy of the other, could fully protect itself by voting House to the detrimentofthepower of the Senate; but not to an equal to reject where the other voted to count. extent, prior to the twelfth amendment, for the contingent power of the Senate only vested, when there were twopersonsbavingeqnalelect­ DOES THE REQIDSITION OF A CONCURRENCE OF BOTH HOUSES IN ORDER TO COUNT­ oral votes, after the person having the greatestnumberforPresident. ING A VOTE DIPAIR STATE RIGHTS f It is true that :Q.OW the contingent power of the two Houses stands on There has been some opposition to this doctrino on the ground that the same basis precisely, but we may reason of the motives to this the effect will be to give to the two Houses of Congress an undue clause, unchanged by the twelfth amendment, from tho context to its control of the State power in the election of President. This idea is terms in the origioal Constitution. the result of misapprehension. The objection (prior to the twelfth amendment) to the theory that Nothing is more essential to the preservation of the reserved rights either Hoose could decide to count a vote, ?Wn obstante. t,he di8Sent of of the States than the strict maintenance of the well-defined bound­ the other, is therefore very strong, for it would involve the complete ary between them and t.he Federal power. They are imperiled when dependence of the contingent elective function of the House ou the indiscreet friends claim for them an abridgment of the .l!'ederal author­ will of the Senate without a correlative dependence of that of the ity contrary to the Constitution. The feuce between these should be Senate on the will of the Honse. The Senate by its absolute fiat migat kept up, so that neither can trespass upon the other, for the States thus wrest from the House this important power, which the House may be well assured that the breach they make to filch from Federal would have no constit-utional means of defeating. power for their own interests will be enlarged for a more fatal breach And as the Constitution now stands, since the twelfth amendment, by the latter on them. 6ach Hoose would have the power to defeat the contingent elective Now, while the Constitution vests in the States the substantial function of the other, and yet have no power to protect its oum, which power over the presidential election, the right of judgment in order is a rE>sult bordering on the absurd. to Federal self-protection is left to the two Houses. I would not On the other band, if, as we insist, either House may reject an elect­ trench in any degree upon the large discretion given to the States; oral vote and both must concur to count, neither can defeat the but the right to judge whether State lawR have been obsen·ed, and other's elective power by counting improper t·otes, for thereb:y it equally the elections authorized under their authority have been fairly or defeats itself, while each is interested to reject a false vote in favor fraudulently conducted, has been and should be left to the Federal of its own power. guardians of the executive department. To make the officials of each Rut it may be said tha.t the Honse might, in order to get the power State the final arbiters of the validity of an elention to l:>e held and 848 CONGRESSIONAL RECORD-HOUSE. JANUARY 23, directed by State law is to put the election of the Federal Executive the two Houses; tbat he is the intermediary, or umpire, uetwcen dis­ at the mercy of the officials of the States; and it is therefore entirely agreeing arbitrators. reasonable, while giving to the State the lawful control and direction This theory may be ingeniouR, but is nntenable. of the election, to vest in the Houses of Congress the right to see that First. I will show hereafter it has never ueen broached in the twen­ it was fair and legal. ty-two presidential elections which have occurred. And it must be noted that there is a a subtle vice in the argument Second. All the reasoning already adopted as conclusive against which regards the. Federal right of judgment as an invasion of the his power, had the Senate's presence alone, (as at first proposed,) with­ State right of election. This begs the question. The question is: out that of the Honse, been requirt::d, is equally strong, and even Are the persons claiming to be electors appointed by the State in such stronger, as both Houses must be present under the clause adopted. manner as its Legislature has directed' This is assumed by the ob­ Third. Bot suppose he and the Senate-the Senate and its creature jector. Whoever claims to speak as an elector for the State must appointed, it might be, to enforce its power and make it paramount 'be tested by some determinant power. If not, ha may falsely speak over that of this House-concur in counting a vote against the dissent for her, and without her authority. The Federal power challenges of this Honse. Did the Constitution intend the oligarchy to become his claim and protects the State thereby from his false claim. The sole judge by giving it two votes by its own will against the one vote spurious elector exclaims that we strike down the State by the blow of this body f Did it intend to create an arbitration by the two which only fells him; but, if we silence one who speaks without au- Houses, with power in one arbitrator to appoint the umpire between 1hority, we not ouly do her no wrong, bot defend her right against them in case of disagreement T Was ever such an urn pi rage heard off misrepresentation. It is better she should be silent than that her This view must be condemned as vicioas in theory, as it would be opinions be falsified by an unauthorizetl representn.tive. destructive in practice to the power of the whole people, in favor of Bot another view is proper. This power of the States is federative the oligarchic authority of the Senate. It is but another mode of in its nature and extraterritorial in its opera'kion. Aslon~ as a State giving force to the exploded dogma of the exclusive power of the exercises its powers over its own interests~ those which belong to its President of the Senate or to the paramount power of the senatorial own people exclusively, Federal interference with the State is not oligarchy over the will of the people. only intrusive and dangerous to liberty, bot unconstitutional. The ON WHAT CO:XTIXGENCIES DOES THE ELECTIVE RIGHT RESULT TO EITHER OF TllE convention rejected with emphatic reprobation tbe proposal that the HOUSES~ governor of a State should be appointed by the General Go\ernment One other question remains to be considered: the nature of the coa­ and that its laws should thus ue. subject to Federal veto, because the tingency upon which the rigllt to elect a Presid.?nt results to the State autonomy would thus be destroyed and Federal power as ume House and that of choosing a Vice-President results to the Senate. th management of all its local concerns.-2 Mad. l'ap., 8V2; 3 I d., 1411. The twelfth amendment provides that- Bot when a State by its legislation may affect the coinage, or the The person having tho ~rreatest number of votes for President shall be the Presi. commerce, or the peace of the States with which it is united: or the dent, if such number be a majority of the whole nttmber o.f electors appointed. and obligation of its own to the citizens of sister States, when State au­ if no person have such maJority, then from the persons having the highest nu~ hers tbonty reaches out to control interests beyond its own territorial not exceeding three on the list of those voted for as President, the House of Repre. boundary, compact limitations were placed upon State authority in sentatives shall choose immediately, by ballot, the President. order to protect the federative rights to be influenced by its legisla­ Each State shall have one vote, "and a majority of all the States tion. And while its State governments are left to its people's will shall be necessary to a choice." exclusively, yet when State action operates to mold Federal organ­ WHAT IS THE MAJORITY REQUillED TO ELECT 1 ism in its legislative department, a self-protection was furnished to What is the meaning of the words "if such number be a majority the latter against the injurious action of the former; so that, though of the whole number of electors appointed Y" We have spoken of it was wise without Federal interference to leave each State to select throwing out votes for illegality, fraud, or inability to decide who is its own rulers, yet, when it was admitted to the exercise of a power really appointed. Must these be counted as among that whole num­ over the choice of the President for all the other States as well as for bir of electors appointed of which the successful candidate must itself, it was just and indispensable that their rights should not be secure a majority t left to the uncontrolled caprice of a single State or the loose and dan­ The word " appointed" indicates an affirmative answer to this ques­ gerous action of its officials. Its rights could not be preserved at the tion, and the history of the clause, as well as the context, confirms expense of the equal rights of thirty-seven other co-equal partners in it. If it had intended to make a majority of the less number the the Federal system, and especially when this right it claims is to a word "appointed" would not have been added, and the word "vot­ power exercised through the electoral colleges, which is no part of its ing" or some such word would have been used. reserved authority, bot a power conferred upon it by the other States Hut the history is conclusive on this question. At :first the clause through the Federal Constitution. read" if such number be a majority of that of the electors." This "\"\redo not propose to impair the elective power vested in the States was at best equivocal. operating through th13 colleges. We only claim a right of judgment It was thought, that as then the Senate was to elect, if no such whether the power has been legally and fairly exercised and whether majority wa~r obtained, the election would most usually be thrown the free and true vote;sof the State bavo been cast or been tampered into the Senate. Many were very averse to this. with or substituted by others through tl1e frauds and illegal action To prevent the eventual election by the Senate as far as possible of the officers whom the State has appointed to certify the results of Mr. Madison proposed to insert "one-third" in place of "majority'~ the election. in the clause. It was lost. (3 Mad. Pap., 1501.) He then moved to This sudden zeal for the rights of the Sta\es by the republican party insert after electors, "who shall have balloted," saying, "so that the occasions ns a surprise as real as that it feigns at our supposed aban­ non-voting electors, not being counted, might not increase the num­ donment of them. ber necessary as a majority of the whole to decide the choice with­ -In the defen e of the local go,~ernment of each Stat.e by its own out the agency of the Senate." It was lost. (Id., 1502.) Then" Mr. people, the democratic party is nnitied in sentiment. But bow is it Dickinson moved in order to remove ambiguity from the intention with the gentlemen of the republican party T They have a zeal, but of the clause, as explained by the vote: to add after the words 'if nat according to knowledge. It is misplaced. When the local con­ such number be a majority of the electors,' the word, 'appointed.'" It cerns of the States are in qnestion they sanction the use of Federal was adopted, nine States to two. (Id., 1502-3.) A change was pro­ power; but when the State's action affects Federal affairs they claim posed by adding," and who shall have given their votes" after tho exclusive power for the State. word appointed. It was lost. (Id., 1509.) Their chief bas placed his soldiers at the doors of the capitol of Loui­ This meaning derived. from the dabates seems to leave no doubt of siana and of South Carolina: His military su bordinaies have decided the inte'ntion. But the context is equally conducive to the same con­ on the returns, elections, and qualifications of the members of State clusion. Legislatures. By the Federal bayonet the governments of the States The power to reject votes, of which we have spoken, would have are set Hp or pnt down at the will of the President. enabled the Houses to reduce the number necessary to elect to a small But when the returns of one St.ate would elect a President for t-he minority. If a State attempts to elect and certify, and does elect some Union, and we assert our power to inquire whether they respond to one, but owin·g to defective returns it cannot be decided whom, it or :falsify the will of the people of that State, the republican party, would be ubfair to count her out from all influence in an election with the iron heel of military powe!' tramp~iug. in the dust the anton· from which her vote may be properly exclnued. She would there­ omy of" the prostrate pelican State, withholds from our scrutiny the fore be counted as of the electoral body, though her voice be not heard. returns of an infamous board of oligarchs, reeking with fraud, as the Again, when the election is thrown into the House, the person evidence of its devotion to State rights and the love of a fair count, elected must have a majority of all the States, whet.her there or not, felt by itself as well as by its di tmguished leader. We would ex­ and a majority of the 'whole number of the Senate is needed to the clude Federal interference in the local afl"a.irs of a State and protect election of a Vice-President. And by article 1, section 5, a majority the Federal organism against State control. But the State rights of of each House constitutes a quorum, but" one-fifth of those pt·esent" onr opponents are reversed. They increase State power where it should. may demand the yeas and nays. ue diminished and paralyze it where it should be supreme. The distinction between a majority of the whole ancl of those pres­ ent and acting is thus clearly manifest, and the words and context liS '!HE l'RESIDEXT OF THE SESATE ID.1TED WITII TllE HOCSES JN THE COID.'T OR A..~ show that in this case the President-elect must have a clear majority IDIPI.RE DETWEEN 'fHEll 1 of the electors whom t}Je States have appointed. But a nflw theory is broached, which I pause for a moment to no­ But suppose an ineligible person be voted for. Is he appointed. f tice in order to refnte it. Clearly not. He therefore cannot be counted among the electors ap· It is that the counting power is in the President of the Senate and pointed. The State bas not appointed. Her act was null.