("Counting the Electoral Votes," United States Senate, January 24th,
1877)
Mr. President, I might have been content as a friend of this measure
to allow it to go before the Senate and the country unaccompanied by
any remarks of mine had it not been the pleasure of the Senate to
assign me as one of the minority in this Chamber to a place upon the
select committee appointed for the purpose of reporting a bill
intended to meet the exigencies of the hour in relation to the
electoral votes. There is for every man in a matter of such gravity
his own measure of responsibility, and that measure I desire to
assume. Nothing less important than the decision, into whose hands
the entire executive power of this government shall be vested in the
next four years, is embraced in the provisions of this bill. The
election for President and Vice-President has been held, but as to
the results of that election the two great political parties of the
country stand opposed in serious controversy. Each party claims
success for its candidate and insists that he and he alone shall be
declared by the two houses of Congress entitled to exercise the
executive power of this government for the next four years. The
canvass was prolonged and unprecedented in its excitement and even
bitterness. The period of advocacy of either candidate has passed,
and the time for judgment has almost come. How shall we who purpose
to make laws for others do better than to exhibit our own reverence
for law and set the example here of subordination to the spirit of
law?
It cannot be disguised that an issue has been sought, if not
actually raised, in this country, between a settlement of this great
question by sheer force and arbitrary exercise of power or by the
peaceful, orderly, permanent methods of law and reason. Ours is, as
we are wont to boast, a government of laws, and not of will; and we
must not permit it to pass away from us by changing its nature.
"O, yet a nobler task awaits thy hand,
For what can war but endless war still breed?"
By this measure now before the Senate it is proposed to have a
peaceful conquest over partisan animosity and lawless action, to
procure a settlement grounded on reason and justice, and not upon
force. Therefore, it is meant to lift this great question of
determining who has been lawfully elected President and
Vice-President of these United States out of the possibility of
popular broils and tumult, and elevate it with all dignity to the
higher atmosphere of legal and judicial decision. In such a spirit I
desire to approach the consideration of the subject and shall seek
to deal with it at least worthily, with a sense of public duty
unobstructed, I trust, by prejudice or party animosity. The truth of
Lord Bacon's aphorism that "great empire and little minds go ill
together," should warn us now against the obtrusion of narrow or
technical views in adjusting such a question and at such a time in
our country's history.
Mr. President, from the very commencement of the attempt to form the
government under which we live, the apportionment of power in the
executive branch and the means of choosing the chief magistrate have
been the subject of the greatest difficulty. Those who founded this
government and preceded us in its control had felt the hand of
kingly power, and it was from the abuse of executive power that they
dreaded the worst results. Therefore it was that when the
Constitution came to be framed that was the point upon which they
met and upon which they parted, less able to agree than upon almost
all others combined. A glance at the history of the convention that
met at Philadelphia on the fourteenth of May, 1787, but did not
organize until the twenty-fifth day of the same month, will show
that three days after the convention assembled two plans of a
Constitution were presented, respectively, by Mr. Edmund Randolph,
of Virginia, and Mr. Charles Pinckney, of South Carolina. The first
proposed the election of the executive by the legislature, as the
two houses were then termed, for a term of seven years, with
ineligibility for re-election. The other proposed an election, but
left the power to elect or the term of office in blank. Both of
these features in the schemes proposed came up early for
consideration, and, as I have said before, as the grave and able
minds of that day approached this subject they were unable to agree,
and accordingly, from time to time, the question was postponed and
no advance whatever made in the settlement of the question. Indeed,
so vital and wide was the difference that each attempt made during
the course of the five months in which that convention was assembled
only seemed to result in renewed failure. So it stood until the
fourth day of September had arrived. The labors of the convention
by that time had resulted in the framing of a Constitution, wise and
good and fairly balanced, calculated to preserve power sufficient in
the government, and yet leaving that individual freedom and liberty
essential for the protection of the States and their citizens. Then
it was that this question, so long postponed, came up for
consideration and had to be decided. As it was decided then, it
appears in the Constitution as submitted to the States in 1787; but
an amendment of the second article was proposed in 1804, which,
meeting the approval of the States, became part of the Constitution.
I must be pardoned if I repeat something of what has preceded in
this debate, by way of citation from the Constitution of the United
States, in order that we may find there our warrant for the present
measure. There were difficulties of which these fathers of our
government were thoroughly conscious. The very difficulties that
surround the question to-day are suggested in the debates of 1800,
in which the history of double returns is foretold by Mr. Pinckney
in his objections to the measure then before the Senate. The very
title of that act, "A Bill Prescribing a Mode of Deciding Disputed
Elections of President and Vice-President of the United States,"
will show the difficulties which they then perceived and of which
they felt the future was to be so full. They made the attempt in
1800 to meet those difficulties. They did not succeed. Again and
again the question came before them. In 1824 a second attempt was
made at legislation. It met the approval of the Senate. It seemed
to meet the approval of the Committee on the Judiciary of the House,
by whom it was reported without amendment, but never was acted upon
in that body, and failed to become a law. This all shows to us that
there has been a postponement from generation to generation of a
subject of great difficulty that we of to-day are called upon to
meet under circumstances of peculiar and additional disadvantage;
for while in the convention of 1787 there was a difference arising
from interest, from all the infinite variances of prejudice and
opinion upon subjects of local, geographical, and pecuniary
interests, and making mutual concessions and patriotic considerations
necessary at all times, yet they were spared the most dangerous
of all feelings under which our country has suffered of late; for,
amid all the perturbing causes to interfere with and distract their
counsels, partisan animosity was at least unknown. There was in that
day no such thing as political party in the United States:--
"Then none were for a party,
But all were for the State."
Political parties were formed afterward and have grown in strength
since, and to-day the troubles that afflict our country chiefly may
be said to arise from the dangerous excess of party feeling in our
councils.
But I propose to refer to the condition of the law and the
Constitution as we now find it. The second article of the first
section of the Constitution provides for the vesting of the
executive power in the President and also for the election of a
Vice-President. First it provides that "each State" shall, through
its legislature, appoint the number of electors to which it is
entitled, which shall be the number of its Representatives in
Congress and its Senators combined. The power there is to the State
to appoint. The grant is as complete and perfect that the State
shall have that power as is another clause of the Constitution
giving to "each State" the power to be represented by the Senators
in this branch of Congress. There is given to the electors
prescribed duties, which I will read:--
The electors shall meet in their respective States and vote by
ballot for President and Vice-President, one of whom, at least,
shall not be an inhabitant of the same State with themselves: they
shall name in their ballots the person voted for as President, and
in distinct ballots the person voted for as Vice-President, and they
shall make distinct lists of all persons voted for as President, and
of all persons voted for as Vice-President, and of the number of
votes for each; which lists they shall sign and certify, and
transmit sealed to the seat of government of the United States,
directed to the President of the Senate. The President of the Senate
shall, in the presence of the Senate and House of Representatives,
open all the certificates, and the votes shall then be counted.
Then follows the duty and power of Congress in connection with this
subject to determine the time of choosing the electors and the day
on which they shall give their votes, which day shall be the same
throughout the United States. The next clause provides for the
qualifications of the candidates for the presidency and
vice-presidency. The next clause gives power to the Congress of the
United States to provide for filling the office of President and
Vice-President in the event of the death, resignation, or inability
of the incumbents to vest the powers and duties of the said office.
The other clause empowers Congress thus to designate a temporary
President. The other clauses simply relate to the compensation of
the President and the oath he shall take to perform the duties of
the office. Connected with that delegation of power is to be
considered the eighth section of the first article which gives to
the Congress of the United States power "to make all laws which
shall be necessary and proper for carrying into execution the
foregoing powers, and all other powers vested by this Constitution
in the government of the United States, or in any department or
officer thereof."
It will be observed, so far, that the Constitution has provided the
power but has not provided the regulations for carrying that power
into effect. The Supreme Court of the United States sixty-odd years
ago defined so well the character of that power and the method of
its use that I will quote it from the first volume of _Wheaton's
Reports, page 326:_
Leaving it to the legislature from time to time to adopt its own
means to effectuate, legitimate, and mold and model the exercise of
its powers as its own wisdom and public interest should require.
In less than four years, in March 1792, after the first Congress had
assembled there was legislation upon this subject, carrying into
execution the power vested by this second article of the
Constitution in a manner which will leave no doubt of what the men
of that day believed was competent and proper. Here let me advert
to that authority which must ever attach to the contemporaneous
exposition of historical events. The men who sat in the Congress of
1792 had many of them been members of the convention that framed the
Federal Constitution. All were its contemporaries and closely were
they considering with master-minds the consequences of that work.
Not only may we gather from the manner in which they treated this
subject when they legislated upon it in 1792 what were their views
of the powers of Congress on the subject of where the power was
lodged and what was the proper measure of its exercise, but we can
gather equally well from the inchoate and imperfect legislation of
1800 what those men also thought of their power over this subject,
because, although differing as to details, there were certain
conceded facts as to jurisdiction quite as emphatically expressed as
if their propositions had been enacted into law. Likewise in 1824
the same instruction is afforded. If we find the Senate of the
United States without division pass bills which, although not passed
by the co-ordinate branch of Congress, are received by them and
reported back from the proper committees after examination and
without amendment to the committee of the whole House, we may learn
with equal authority what was conceded by those houses as to the
question of power over the subject. In a compilation made at the
present session by order of the House Committee, co-ordinate with
the Senate Committee, will be found at page 129 a debate containing
expressions by the leading men of both parties in 1857 of the
lawfulness of the exercise of the legislative power of Congress over
this subject. I venture to read here from the remarks of
Mr. Hunter, of Virginia, one of the most respected and conservative
minds of his day in the Congress of the United States:--
The Constitution evidently contemplated a provision to be made by
law to regulate the details and the mode of counting the votes for
President and Vice-President of the United States. The President of
the Senate shall, in the presence of the Senate and House of
Representatives, open all the certificates, and the votes shall then
be counted. By whom, and how to be counted, the Constitution does
not say. But Congress has power to make all laws which shall be
necessary and proper for carrying into execution the foregoing
powers, and all other powers vested by this Constitution in the
government of the United States, or in any department or officer
thereof. Congress, therefore, has the power to regulate by law the
details of the mode in which the votes are to be counted. As yet,
no such law has been found necessary. The cases, happily, have been
rare in which difficulties have occurred in the count of the
electoral votes. All difficulties of this sort have been managed
heretofore by the consent of the two houses--a consent either
implied at the time or declared by joint resolutions adopted by the
houses on the recommendation of the joint committee which is usually
raised to prescribe the mode in which the count is to be made. In
the absence of law, the will of the two houses thus declared has
prescribed the rule under which the President of the Senate and the
tellers have acted. It was by this authority, as I understand it,
that the President of the Senate acted yesterday. The joint
resolution of the two bouses prescribed the mode in which the
tellers were to make the count and also required him to declare the
result, which he did. It was under the authority, therefore, and by
the direction of the two houses that he acted. The resolutions by
which the authority was given were according to unbroken usage and
established precedent.
Mr. President, the debate from which I have read took place in 1857
and was long and able, the question there arising upon the proposed
rejection of the vote of the State of Wisconsin, because of the
delay of a single day in the meeting of the electors. A violent
snowstorm having prevented the election on the third of December, it
was held on the fourth, which was clearly in violation of the law of
Congress passed in pursuance of the Constitution requiring that the
votes for the electors should be cast on the same day throughout the
Union. That debate will disclose the fact that the danger then
became more and more realized of leaving this question unsettled as
to who should determine whether the electoral votes of a State
should be received or rejected when the two houses of Congress
should differ upon that subject. There was no arbiter between
them. This new-fangled idea of the present hour, that the presiding
officer of the Senate should decide that question between the two
disagreeing houses, had not yet been discovered in the fertility of
political invention, or born perhaps of party necessity. The
question has challenged all along through our country's history
the ablest minds of the country; but at last we have reached a point
when under increased difficulties we are bound to settle it. It arose
in 1817 in the case of the State of Indiana, the question being
whether Indiana was a State in the Union at the time of the casting
of her vote. The two houses disagreed upon that subject; but by a
joint resolution, which clearly assumed the power of controlling the
subject, as the vote of Indiana did not if cast either way control
the election, the difficulty was tided over by an arrangement for
that time and that occasion only. In 1820 the case of the State of
Missouri arose and contained the same question. There again came the
difficulty when the genius and patriotism of Henry Clay were brought
into requisition and a joint resolution introduced by him and
adopted by both houses was productive of a satisfactory solution for
the time being. The remedy was merely palliative; the permanent
character of the difficulty was confessed and the fact that it was
only a postponement to men of a future generation of a question
still unsettled.
It is not necessary, and would be fatiguing to the Senate and to
myself, to give anything like a sketch of the debate which followed,
of the able and eminent men on both sides who considered the
question, arriving, however, at one admitted conclusion, that the
remedy was needed and that it did lie in the law-making power of the
government to furnish it.
Thus, Mr. President, the unbroken line of precedent, the history of
the usage of this government from 1789 at the first election of
President and Vice-President until 1873, when the last count of
electoral votes was made for the same offices, exhibits this fact,
that the control of the count of the electoral votes, the
ascertainment and declaration of the persons who were elected
President and Vice-President, has been under the co-ordinate power
of the two houses of Congress, and under no other power at any time
or in any instance. The claim is now gravely made for the first
time, in 1877, that in the event of disagreement of the two houses
the power to count the electoral votes and decide upon their
validity under the Constitution and law is vested in a single
individual, an appointee of one of the houses of Congress, the
presiding officer of the Senate. In the event of a disagreement
between the two houses, we are now told, he is to assume the power,
in his sole discretion, to count the vote, to ascertain and declare
what persons have been elected; and this, too, in the face of an act
of Congress, passed in 1792, unrepealed, always recognized, followed
in every election from the time it was passed until the present day.
Section 5 of the act of 1792 declares:--
That Congress shall be in session on the second Wednesday in
February 1793, and on the second Wednesday in February succeeding
every meeting of the electors; and the said certificates, or so many
of them as shall have been received, shall then be opened, the votes
counted, and the persons who shall fill the offices of President and
Vice-President ascertained and declared agreeably to the
Constitution.
Let it be noted that the words "President of the Senate" nowhere
occur in the section.
But we are now told that though "Congress shall be in session," that
though these two great bodies duly organized, each with its
presiding officer, accompanied by all its other officers, shall meet
to perform the duty of ascertaining and declaring the true result of
the action of the electoral colleges and what persons are entitled
to these high executive offices, in case they shall not agree in
their decisions there shall be interposed the power of the presiding
officer of one of the houses to control the judgment of either and
become the arbiter between them. Why, Mr. President, how such a
claim can be supposed to rest upon authority is more than I can
imagine. It is against all history. It is against the meaning of
laws. It is not consistent with the language of the Constitution.
It is in the clearest violation of the whole scheme of this popular
government of ours, that one man should assume a power in regard to
which the convention hung for months undecided, and carefully and
grudgingly bestowing that power even when they finally disposed of
it. Why, sir, a short review of history will clearly show how it
was that the presiding officer of the Senate became even the
custodian of the certificates of the electors.
On the fourth of September, 1787, when approaching the close of
their labors, the convention discovered that they must remove this
obstacle, and they must come to an agreement in regard to the
deposit of this grave power. When they were scrupulously
considering that no undue grant of power should be made to either
branch of Congress, and when no one dreamed of putting it in the
power of a single hand, the proposition was made by Hon. Mr. Brearly,
from a committee of eleven, of alterations in the former schemes of
the convention, which embraced this subject. It provided:--
5. Each State shall appoint, in such manner as its legislature may
direct a number of electors equal to the whole number of Senators
and Members of the House of Representatives to which the State may
be entitled in the legislature.
6. The electors shall meet in their respective States and vote by
ballot for two persons, one of whom at least shall not be an
inhabitant of the same State with themselves; and they shall make
a list of all the persons voted for, and of the number of votes
for each, which list they shall sign and certify, and transmit
sealed to the seat of the general government, directed to the
President of the Senate.
7. The President of the Senate shall, in that house, open all the
certificates; and the votes shall be then and there counted. The
person having the greatest number of votes shall be the
President, if such number shall be a majority of the whole number
of the electors appointed; and if there be more than one who have
such majority and have an equal number of votes, then the Senate
shall choose by ballot one of them for President; but if no
person have a majority, then from the five highest on the list
the Senate shall choose by ballot the President. And in every
case after the choice of the President the person having the
greatest number of votes shall be Vice-President. But if there
should remain two or more who shall equal votes, the Senate shall
choose from them the Vice-President. (See 'Madison Papers.' page
506. etc.)
Here we discover the reason why the President of the Senate was made
the custodian of these certificates. It was because in that plan of
the Constitution the Senate was to count the votes alone; the House
was not to be present; and in case there was a tie or failure to
find a majority the Senate was to elect the President and
Vice-President. The presiding officer of the body that was to count
the votes alone, of the body that alone was to elect the President
in default of a majority--the presiding officer of that body was
naturally the proper person to hold the certificates until the
Senate should do its duty. It might as well be said that because
certificates and papers of various kinds are directed to the
President of this Senate to be laid before the Senate that he should
have the control to enact those propositions into law, as to say
that because the certificates of these votes were handed to him he
should have the right to count them and ascertain and declare what
persons had been chosen President and Vice-President of the United
States.
But the scheme reported by Mr. Brearly met with no favor. In the
first place, it was moved and seconded to insert the words "in the
presence of the Senate and House of Representatives" after the word
"counted." That was passed in the affirmative. Next it was moved to
strike out the words "the Senate shall immediately choose by ballot"
and insert the words "and House of Representatives shall immediately
choose by ballot one of them for President, and the members of each
State shall have one vote," and this was adopted by ten States in
the affirmative to one State in the negative.
Then came another motion to agree to the following paragraph, giving
to the Senate the right to choose the Vice-President in case of the
failure to find a majority, which was agreed to by the convention;
so that the amendment as agreed to read as follows:--
The President of the Senate, in the presence of the Senate and House
of Representatives, shall open all the certificates, and the votes
shall then be counted. The person having the greatest number of
votes shall be President, if such number be a majority of the whole
number of electors appointed: and if there be more than one who have
such majority, and have an equal number of votes, then the House of
Representatives shall immediately choose by ballot one of them for
President, the representation from each State having one vote; but
if no person have a majority, then from the five highest on the list
the House of Representatives shall in like manner choose by ballot
the President.
And then follows that if there should remain two candidates voted
for as Vice-President having an equal vote the Senate shall choose
from them the Vice-President. Mr. President, is it not clear that
the Constitution directed that the certificates should be deposited
with the presiding officer of that body which was alone to count the
votes and elect both the President and Vice-President in case there
was a failure to find a majority of the whole number of electors
appointed? There is a maxim of the law, that where the reason ceases
the law itself ceases. It is not only a maxim of common law, but
equally of common sense. The history of the manner in which and the
reason for which the certificates were forwarded to the President of
the Senate completely explains why he was chosen as the depositary
and just what connection he had with and power over those
certificates. After the power had been vested in the House of
Representatives to ballot for the President, voting by States, after
the presence of the House of Representatives was made equally
necessary before the count could begin or proceed at all, the
President of the Senate was still left as the officer designated to
receive the votes. Why? Because the Senate is a continuing body,
because the Senate always has a quorum. Divided into three classes,
there never is a day or a time when a quorum of the Senate of the
United States is not elected and cannot be summoned to perform its
functions under the Constitution. Therefore you had the officer of a
continuing body, and as the body over which he presided and by whom
he is chosen was one of the two co-ordinate bodies to perform the
great function of counting the votes and of ascertaining and
declaring the result of the electoral vote, he was left in charge of
the certificates.
You also find in the sixth section of the act of 1792 that Congress
exercised its regulating power and declared "that in case there
shall be no President of the Senate at the seat of government on the
arrival of the persons intrusted with the lists of votes of the
electors, then such persons shall deliver the lists of votes in
their custody into the office of the Secretary of State to be safely
kept and delivered over as soon as may be to the President of the
Senate."
What does this signify? That it was a simple question of custody, of
safe and convenient custody, and there is just as much reason to say
that the Secretary of State being the recipient of those votes had a
right to count them as to say that the other officer designated as
the recipient of the votes, the President of the Senate, had a right
to count them.
Now, here is another fact a denial of which cannot be safely
challenged. Take the history of these debates upon the formation of
the Federal Constitution from beginning to end, search them, and no
line or word can be discovered that even suggests any power whatever
in any one man over the subject, much less in the President of the
Senate, in the control of the election of the President or the
Vice-President. Why, sir, there is the invariable rule of
construction in regard to which there can be no dispute, that the
express grant of one thing excludes any other. Here you have the
direction to the President of the Senate that be shall receive these
certificates, or if absent that another custodian shall receive
them, hold them during his absence and pass them over to him as soon
as may be, and that then he shall in the presence of the two houses
of Congress "open all the certificates." There is his full measure
of duty; it is clearly expressed; and then after that follows the
totally distinct duty, not confided to him, that "the votes shall
then be counted."
I doubt very much whether any instrument not written by an inspired
hand was more clear, terse, frugal of all words except those
necessary to express its precise meaning, than the Constitution of
the United States. It would require the greatest ingenuity to
discover where fewer words could be used to accomplish a plain end.
How shall it be that in this closely considered charter, where every
word, every punctuation was carefully weighed and canvassed, they
should employ seven words out of place when two words in place would
have fulfilled their end? If it had been intended to give this
officer the power to count, how easy to read, "The President of the
Senate shall, in the presence of the Senate and House of
Representatives, open and count the votes." Why resort to this
other, strained, awkward, ungrammatical, unreasonable transposition
of additional words to grant one power distinctly and leave the
other to be grafted upon it by an unjust implication? No,
Mr. President, if it were a deed of bargain and sale, or any
question of private grant, if it did not touch the rights of a great
people, there would be but one construction given to this language,
that the expression of one grant excluded the other. It was a
single command to the President of the Senate that, as the
custodian, he should honestly open those certificates and lay them
before the two houses of Congress who were to act, and then his duty
was done, and that was the belief of the men who sat in that
convention, many of whom joined in framing the law of 1792 which
directed Congress to be in session on a certain day and that the
votes should be counted and the persons who should fill the office
of President and Vice-president ascertained and declared agreeably
to the Constitution.
The certificates are to be opened by their custodian, the President
of the Senate, in the presence of the Senate and the House of
Representatives. Let it be noted this is not in the presence of the
Senators and Representatives, but it is in the presence of two
organized bodies who cannot be present except as a Senate and as a
House of Representatives, each with its own organization, its own
presiding officer and all adjuncts, each organized for the
performance of a great duty.
When the first drafts of the Constitution were made, instead of
saying "in the presence of the Senate and the House of Representatives,"
they called it "the Legislature." What is a Legislature? A
law-making body organized, not a mob, but an organized body to make
laws; and so the law-making power of this Union, consisting of these
two houses, is brought together. But it seems to me a most
unreasonable proposition to withhold from the law-making power of
this government the authority to regulate this subject and yet be
willing to intrust it to a single hand. There is not a theory of
this government that will support such a construction. It is
contrary to the whole genius of the government; it is contrary to
everything in the history of the formation of the government; it is
contrary to the usage of the government since its foundation.
The President of the Senate is commanded by the Constitution to open
the votes in the presence of the two houses. He does not summon
them to witness his act, but they summon him by appointing a day and
hour when he is to produce and open in their presence all the
certificates he may have received, and only then and in their
presence can he undertake to open them at all. If he was merely to
summon them as witnesses of his act it would have been so stated.
But when did the President of the Senate ever undertake to call the
two houses together to witness the opening and counting of the
votes? No, sir; he is called at their will and pleasure to bring
with him the certificates which he has received, and open them
before them and under their inspection, and not his own. When the
certificates have been opened, when the votes have been counted, can
the President of the Senate declare the result? No, sir, he has
never declared a result except as the mouthpiece and the organ of
the two houses authorizing and directing him what to declare, and
what he did declare was what they had ascertained and in which
ascertainment he had never interfered by word or act.
Suppose there shall be an interruption in the count, as has occurred
in our history, can the President of the Senate do it? Did he ever
do it? Is such an instance to be found? Every interruption in the
count comes from some Member of the House or of the Senate, and upon
that the pleasure of the two houses is considered, the question put
to them to withdraw if they desire, and the count is arrested until
they shall order it to recommence. The proceeding in the count, the
commencement of the count is not in any degree under his control.
It is and ever was in the two houses, and in them alone. They are
not powerless spectators; they do not sit "state statues only," but
they are met as a legislature in organized bodies to insure a
correct result of the popular election, to see to it that "the votes
shall then be counted" agreeably to the Constitution.
In 1792 when some of the men who sat in the convention that framed
the Constitution enacted into law the powers given in relation to
the count of the electoral votes, they said, as I have read, that
the certificates then received shall be opened and the votes
counted, "and the persons to fill the offices of President and
Vice-President ascertained agreeably to the Constitution," and that
direction is contained in the same section of the law that commands
Congress to be in session on that day. It is the law-making power of
the nation, the legislature, that is to perform this solemn and
important duty, and not a single person who is selected by one
branch of Congress and who is removable at their will, according to
a late decision of the Senate.
Yes, Mr. President, the power contended for by some Senators, that
the President of the Senate can, in the contingency of a
disagreement between the two houses, from the necessity of the case,
open and count the vote, leads to this: that upon every disputed
vote and upon every decision a new President of the Senate could be
elected; that one man could be selected in the present case to count
the vote of Florida; another, of South Carolina; another, of Oregon;
another, of Louisiana; and the Senate could fill those four offices
with four different men, each chosen for that purpose, and when that
purpose was over to be displaced by the same breath that set them up
for the time being.
Now, sir, if, as has been claimed, the power of counting the votes
is deposited equally in both houses, does not this admission exclude
the idea of any power to count the votes being deposited in the
presiding officer of one of those houses, who is, as I say, eligible
and removable by a bare majority of the Senate, and at will? If the
presiding officer of the Senate can thus count the vote, the Senate
can control him. Then the Senate can control the count and, the
Senate appointing their President, become the sole controllers of
the vote in case of disagreement. What then becomes of the equal
measure of power in the two houses over this subject? If the power
may be said to exist only in case of disagreement, and then _ex_
_necessitate_ _rei_, all that remains for the Senate is to disagree,
and they themselves have created the very contingency that gives
them the power, through their President to have the vote counted or
not counted, as they may desire. Why, sir, such a statement
destroys all idea of equality of power between the two houses in
regard to this subject.
When the President of the Senate has opened the certificates and
handed them over to the tellers of the two houses, in the presence
of the two houses, his functions and powers have ended. He cannot
repossess himself of those certificates or papers. He can no longer
control their custody. They are then and thereafter in the
possession and under the control of the two houses who shall alone
dispose of them.
Why, sir, what a spectacle would it be, some ambitious and
unscrupulous man the presiding officer of the Senate, as was once
Aaron Burr, assuming the power to order the tellers to count the
vote of this State and reject the vote of that, and so boldly and
shamelessly reverse the action of the people expressed at the polls,
and step into the presidency by force of his own decision. Sir, this
is a reduction of the thing to an absurdity never dreamed of until
now, and impossible while this shall remain a free government of
law.
Now, Mr. President, as to the measure before us a few words. It will
be observed that this bill is enacted for the present year, and no
longer.
This is no answer to an alleged want of constitutional power
to pass it, but it is an answer in great degree where the mere
policy and temporary convenience of the act are to be considered.
In the first place, the bill gives to each house of Congress
equal power over the question of counting, at every stage.
It preserves intact the prerogatives, under the Constitution, of
each house.
It excludes any possibility of judicial determination by the
presiding officer of the Senate upon the reception and exclusion of
a vote.
The certificates of the electoral colleges will be placed in the
possession and subject to the disposition of both houses of Congress
in joint session.
The two houses are co-ordinate and separate and distinct. Neither
can dominate the other. They are to ascertain whether the electors
have been validly appointed, and whether they have validly performed
their duties as electors. The two houses must, under the act of
1792, "ascertain and declare" whether there has been a valid
election, according to the Constitution and laws of the United
States. The votes of the electors and the declaration of the result
by the two houses give a valid title, and nothing else can, unless
no majority has been disclosed by the count; in which case the duty
of the House is to be performed by electing a President, and of the
Senate by electing a Vice-President.
If it be the duty of the two houses "to ascertain" whether the
action of the electors has been in accordance with the Constitution,
they must inquire. They exercise supervisory power over every branch
of public administration and over the electors. The methods they
choose to employ in coming to a decision are such as the two houses,
acting separately or together, may lawfully employ. Sir, the grant
of power to the commission is in just that measure, no more and no
less. The decision they render can be overruled by the concurrent
votes of the two houses. Is it not competent for the two houses of
Congress to agree that a concurrent majority of the two houses is
necessary to reject the electoral vote of a State? If so, may they
not adopt means which they believe will tend to produce a
concurrence? Finally, sir, this bill secures the great object for
which the two houses were brought together: the counting of the
votes of the electoral college; not to elect a President by the two
houses, but to determine who has been elected agreeably to the
Constitution and the laws. It provides against the failure to count
the electoral vote of a State in event of disagreement between the
two houses, in case of single returns, and, in cases of contest and
double returns, furnishes a tribunal whose composition secures a
decision of the question in disagreement, and whose perfect justice
and impartiality cannot be gainsaid or doubted.
The tribunal is carved out of the body of the Senate and out of the
body of the House by their vote _viva_ _voce_. No man can sit upon
it from either branch without the choice, openly made, by a majority
of the body of which he is a member, that he shall go there. The
five judges who are chosen are from the court of last resort in this
country, men eminent for learning, selected for their places because
of the virtues and the capacities that fit them for this high
station. ... Mr. President, objection has been made to the
employment of the commission at all, to the creation of this
committee of five senators, five representatives, and five judges of
the Supreme Court, and the reasons for the objection have not been
distinctly stated. The reasons for the appointment I will dwell
upon briefly.
Sir, how has the count of the vote of every President and
Vice-President, from the time of George Washington and John Adams,
in 1789, to the present day, been made? Always and without
exception by tellers appointed by the two houses. This is without
exception, even in the much commented case of Mr. John Langdon, who,
before the government was in operation, upon the recommendation of
the constitutional convention, was appointed by the Senate its
President, for the sole purpose of opening and counting these votes.
He did it, as did every successor to him, under the motion and
authority of the two houses of Congress, who appointed their own
agents, called tellers to conduct the count, and whose count, being
reported to him, was by him declared.
From 1793 to 1865 the count of votes was conducted under concurrent
resolutions of the two houses, appointing their respective
committees to join "in ascertaining and reporting a mode of
examining the votes for President and Vice-President."
The respective committees reported resolutions fixing the time and
place for the assembling of the two houses, and appointing tellers
to conduct the examination on the part of each house respectively.
Mr. President, the office of teller, or the word "teller," is
unknown to the Constitution, and yet each house has appointed
tellers, and has acted upon their report, as I have said, from the
very foundation of the government. The present commission is more
elaborate, but its objects and its purposes are the same, the
information and instruction of the two houses who have a precisely
equal share in its creation and organization; they are the
instrumentalities of the two houses for performing the high
constitutional duty of ascertaining whom the electors in the several
States have duly chosen President and Vice-President of the United
States. Whatever is the jurisdiction and power of the two houses of
Congress over the votes, and the judgment of either reception or
rejection, is by this law wholly conferred upon this commission of
fifteen. The bill presented does not define what that jurisdiction
and power is, but it leaves it all as it is, adding nothing,
subtracting nothing. Just what power the Senate by itself, or the
House by itself, or the Senate and the House acting together, have
over the subject of counting, admitting, or rejecting an electoral
vote, in case of double returns from the same State, that power is
by this act, no more and no less, vested in the commission of
fifteen men; reserving, however, to the two houses the power of
overruling the decision of the commission by their concurrent
action.
The delegation to masters in chancery of the consideration and
adjustments of questions of mingled law and fact is a matter of
familiar and daily occurrence in the courts of the States and of the
United States.
The circuit court of the United States is composed of the district
judge and the circuit judge, and the report to them of a master is
affirmed unless both judges concur in overruling it.
Under the present bill the decision of the commission will stand
unless overruled by the concurrent votes of the two houses. I do not
propose to follow the example which has been set here in the Senate
by some of the advocates as well as the opponents of this measure,
and discuss what construction is to be given and what definition may
be applied or ought to be applied in the exercise of this power by
the commission under this law. Let me read the bill:--
All the certificates and papers purporting to be certificates of the
electoral votes of each State shall be opened, in the alphabetical
order of the States, as provided in Section 1 of this act; and when
there shall be more than one such certificate or paper, as the
certificates and papers from such State shall so be opened
(excepting duplicates of the same return), they shall be read by the
tellers, and thereupon the President of the Senate shall call for
objections, if any. Every objection shall be made in writing, and
shall state clearly and concisely, and without argument, the ground
thereof, and shall be signed by at least one Senator and one Member
of the House of Representatives before the same shall be received.
When all such objections so made to any certificate, vote, or paper
from a State shall have been received and read, all such
certificates, votes, and papers so objected to, and all papers
accompanying the same, together with such objections, shall be
forthwith submitted to said commission, which shall proceed to
consider the same, with the same powers, if any, now possessed for
that purpose by the two houses acting separately or together, and,
by a majority of votes, decide whether any and what votes from such
States are the votes provided for by the Constitution of the United
States, and how many and what persons were duly appointed electors
in such State, and may therein take into view such petitions,
depositions, and other papers, if any, as shall, by the Constitution
and now existing law, be competent and pertinent in such
consideration: which decision shall be made in writing.
It will be observed that all the questions to be decided by this
commission are to be contained in the written objections. Until
those objections are read and filed, their contents must be unknown,
and the issues raised by them undescribed. But whatever they are,
they are submitted to the decision of the commission. The duty of
interpreting this law and of giving a construction to the
Constitution and existing laws is vested in the commission; and I
hold that we have no right or power to control in advance, by our
construction, their sworn judgment as to the matters which they are
to decide. We would defeat the very object of the bill should we
invade the essential power of judgment of this commission and
establish a construction in advance and bind them to it. It would,
in effect, be giving to them a mere mock power to decide by leaving
them nothing to decide.
Mr. President, there are certainly very good reasons why the
concurrent action of both houses should be necessary to reject a
vote. It is that feature of this bill which has my heartiest
concurrence; for I will frankly say that the difficulties which have
oppressed me most in considering this question a year or more ago,
before any method had been devised, arose from my apprehensions of
the continued absorption of undue power over the affairs of the
States; and I here declare that the power and the sole power of
appointing the electors is in the State, and nowhere else. The
power of ascertaining whether the State has executed that power
justly and according to the Constitution and laws is the duty which
is cast upon the two houses of Congress. Now, if, under the guise
or pretext of judging of the regularity of the action of a State or
its electors, the Congress or either house may interpose the will of
its members in opposition to the will of the State, the act will be
one of usurpation and wrong, although I do not see where is the
tribunal to arrest and punish it except the great tribunal of an
honest public opinion. But sir that tribunal, though great, though
in the end certain, is yet ofttimes slow to be awakened to action;
and therefore I rejoice when the two houses agree that neither of
them shall be able to reject the vote of a State which is without
contest arising within that State itself, but that the action of
both shall be necessary to concur in the rejection.
If either house may reject, or by dissenting cause a rejection, then
it is in the power of either house to overthrow the electoral
colleges or the popular vote, and throw the election upon the House
of Representatives. This, it is clear to me, cannot be lawfully done
unless no candidate has received a majority of the votes of all the
electors appointed. The sworn duty is to ascertain what persons have
been chosen by the electors, and not to elect by Congress.
It may be said that the Senate would not be apt to throw the
election into the House. Not so, Mr. President; look at the
relative majorities of the two houses of Congress as they will be
after the fourth of March next. It is true there will be a
numerical majority of the members of the Democratic party in the
House of Representatives, but the States represented will have a
majority as States of the Republican party. If the choice were to
be made after March 4th, then a Republican Senate, by rejecting or
refusing to count votes, could of its own motion throw the election
into the House; which, voting by States, would be in political
accord with the Senate. The House of Representatives, like the
present House in its political complexion, composed of a numerical
majority, and having also a majority of the States of the same
party, would have the power then to draw the election into its own
hands. Mr. President, either of these powers would be utterly
dangerous and in defeat of the object and intent of the
constitutional provisions on this subject.
Sir, this was my chief objection to the twenty-second joint rule.
Under that rule either house of Congress, without debate, without
law, without reason, without justice, could, by the sheer exercise
of its will or its caprice, disfranchise any State in the electoral
college. Under that rule we lived and held three presidential
elections.
In January 1873, under a resolution introduced by the honorable
Senator from Ohio [Mr. Sherman] and adopted by the Senate, the
Committee on Privileges and Elections, presided over by the
honorable Senator from Indiana [Mr Morton], proceeded to investigate
the elections held in the States of Louisiana and Arkansas, and
inquired whether these elections had been held in accordance with
the Constitution and laws of the United States and the laws of said
States, and sent for persons and papers and made thorough
investigation, which resulted in excluding the electoral votes of
Louisiana from the count, (See Report No. 417, third session
Forty-Second Congress.)
The popular vote was then cast, and it was cast at the mercy of a
majority in either branch of Congress, who claimed the right to
annul it by casting out States until they should throw the election
into a Republican House of Representatives. I saw that dangerous
power then, and, because I saw it then, am I so blind, am I so
without principle in my action, that I should ask for myself a
dangerous power that I refused to those who differ from me in
opinion? God forbid.
This concurrence of the two houses to reject the electoral votes of
a State was the great feature that John Marshall sought for in
1800. The Senate then proposed that either house should have power
to reject a vote. The House of Representatives, under the lead of
John Marshall, declared that they should concur to reject the vote,
and upon that difference of opinion the measure fell and was never
revived. In 1824 the bill prepared by Mr. Van Buren contained the
same wholesome principle and provided that the two houses must
concur in the rejection of a vote. Mr. Van Buren reported this bill
in 1824. It was amended and passed, and, as far as I can find from
the record, without a division of the Senate. It was referred in the
House of Representatives to the Committee on the Judiciary, and it
was reported back by Mr. Daniel Webster, without amendment, to the
Committee of the Whole House, showing their approval of the bill;
and that principle is thoroughly incorporated in the present measure
and gives to me one of the strong reasons for my approval.
Mr. President, this bill is not the product of any one man's mind,
but it is the result of careful study and frequent amendment.
Mutual concessions, modifications of individual preferences, were
constantly and necessarily made in the course of framing such a
measure as it now stands. My individual opinions might lead me to
object to the employment of the judicial branch at all, of
ingrafting even to any extent political power upon the judicial
branch or its members, or confiding to them any question even
quasi-political in its character. To this I have expressed and
still have disinclination, but my sense of the general value of this
measure and the necessity for the adoption of a plan outweighed my
disposition to insist upon my own preferences as to this feature.
At first I was disposed to question the constitutional power to call
in the five justices of the Supreme Court, but the duty of
ascertaining what are the votes, the true votes, under the
Constitution, having been imposed upon the commission, the methods
were necessarily discretionary with the two houses. Any and every
aid that intelligence and skill combined can furnish may be justly
used when it is appropriate to the end in view.
Why, sir, the members of the Supreme Court have in the history of
this country been employed in public service entirely distinct from
judicial function. Here lately the treaty of Washington was
negotiated by a member of the Supreme Court of the United States;
the venerable and learned Mr. Justice Nelson, of New York, was
nominated by the President and confirmed by the Senate as one of the
Joint High Commission. Chief-Justice Jay was sent in 1794, while he
was chief-justice of the United States, as minister plenipotentiary
to England, and negotiated a treaty of permanent value and
importance to both countries. He was holding court in the city of
Philadelphia at the time that he was nominated and confirmed, as is
found by reference to his biography, and--
Without vacating his seat upon the bench he went to England,
negotiated the treaty which has since borne his name, and returned
to this country in the spring of the following year.
His successor was Chief-Justice Rutledge, and the next to him was
Chief-Justice Oliver Ellsworth. He, while holding the high place of
chief-justice, was nominated and confirmed as minister plenipotentiary
to Spain. By a law of Congress the chief-justice of the United
States is _ex_ _officio_ the president of the Board of Regents of
the Smithsonian Institution.
Mr. Morton--I should like to ask the Senator, if it does not
interrupt him, whether he regards the five judges acting on this
commission as acting in their character as judges of the Supreme
Court, if that is their official character, and that this bill
simply enlarges their jurisdiction in that respect?
Mr. Bayard--Certainly not, Mr. President. They are not acting as
judges of the Supreme Court, and their powers and their jurisdiction
as judges of the Supreme Court are not in any degree involved; they
are simply performing functions under the government not
inconsistent, by the Constitution, or the law, or the policy of the
law, with the stations which they now hold. So I hold that the
employment of one or more of the Supreme Court judges in the matter
under discussion was appropriate legislation. We have early and high
authority in the majorities in both House and Senate in the bill of
1800, in both of which houses a bill was passed creating a
commission similar to that proposed by this bill and calling in the
chief-justice of the United States as the chairman of the grand
committee, as they called it then, a commission as we term it now.
As has been said before, many of the Senators and members of the
Congress of 1800 had taken part in the convention that framed the
Constitution, and all were its contemporaries, and one of the chief
actors in the proceedings on the part of the House of Representatives
was John Marshall, of Virginia, who one year afterward became the
chief-justice of the United States, whose judicial interpretations
have since that time clad the skeleton of the Constitution with
muscles of robust power. Is it not safe to abide by such examples?
And I could name many more, and some to whom my respect is due for
other and personal reasons.
In the debate of 1817, in the case of the disputed vote of Indiana;
in 1820, in the case of Missouri; and again in 1857, in the case of
Wisconsin, I find an array of constitutional lawyers who took part
in those debates, among them the most distinguished members of both
political parties, concurring in the opinion that by appropriate
legislation all causes of dispute on this all-important matter of
counting the electoral vote could be and ought to be adjusted
satisfactorily. Why, sir, even the dictum of Chancellor Kent, that
has been read here with so much apparent confidence by the honorable
Senator from Indiana, is itself expressed to be his opinion of the
law "in the absence of legislation on the subject."
Mr. President, there were other objections to this bill; one by the
honorable Senator from Indiana. He denounced it as "a compromise."
I have gone over its features and I have failed to discover, nor has
the fact yet been stated in my hearing, wherein anything is
compromised. What power of the Senate is relinquished? What power
of the House is relinquished? What power that both should possess
is withheld? I do not know where the compromise can be, what
principle is surrendered. This bill intends to compromise nothing
in the way of principle, to compromise no right, but to provide an
honest adjudication for the rights of all. Where is it unjust? Whose
rights are endangered by it? Who can foretell the judgment of this
commission upon any question of law or fact? Sir, there is no
compromise in any sense of the word, but there is a blending of
feeling, a blending of opinions in favor of right and justice.
But, sir, if it were a compromise, what is there in compromise that
is discreditable either to men or to nations? This very charter of
government under which we live was created in a spirit of compromise
and mutual concession. Without that spirit it never would have been
made, and without a continuance of that spirit it will not be
prolonged. Sir, when the Committee on Style and Revision of the
Federal convention of 1787 had prepared a digest of their plan, they
reported a letter to accompany the plan to Congress, from which I
take these words as being most applicable to the bill under
consideration:--
And thus the Constitution which we now present is the result of a
spirit of amity and of that mutual deference and concession which
the peculiarity of our political situation rendered indispensable.
The language of that letter may well be applied to the present
measure; and had the words been recalled to my memory before the
report was framed I cannot doubt that they would have been adopted
as part of it to be sent here to the Senate as descriptive of the
spirit and of the object with which the committee had acted.
But, sir, the honorable Senator also stated, as a matter deterring
us from our proper action on this bill, that the shadow of
intimidation had entered the halls of Congress, and that members of
this committee had joined in this report and presented this bill
under actual fear of personal violence. Such a statement seems to me
almost incredible. I may not read other men's hearts and know what
they have felt, nor can I measure the apprehension of personal
danger felt by the honorable Senator. It seems to me incredible.
Fear, if I had it, had been the fear of doing wrong in this great
juncture of public affairs, not the fear of the consequences of doing
right. Had there been this intimidation tenfold repeated to which the
Senator has alluded, and of which I have no knowledge, I should have
scorned myself had I hesitated one moment in my onward march of duty
on this subject.
"Hate's yell, or envy's hiss, or folly's bray"--
what are they to a man who, in the face of events such as now
confront us, is doing that which his conscience dictates to him do?
It has been more than one hundred years since a great judgment was
delivered in Westminster Hall in England by one of the great judges
of our English-speaking people. Lord Mansfield, when delivering
judgment in the case of the King against John Wilkes, was assailed
by threats of popular violence of every description, and he has
placed upon record how such threats should be met by any public man
who sees before him the clear star of duty and trims his bark only
that he may follow it through darkness and through light. I will ask
my friend from Missouri if he will do me the favor to read the
extract to which I have alluded.