Chapter 28

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.