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The Constitution, and Presidential Elections. 
 
 SPEECH 
 
 OF 
 
 
 ROSCOE CONKLING, 
 
 .'1 
 
 IN THE 
 
 Senate of the UmTED States, 
 
 January 23 and 24, 1877. 
 
 'Justice, is law executed. 
 
 ( 
 
 1877. 
 
LU 
 
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 V 
 
 4| 
 
 SPEECM 
 
 OF 
 
 EOSCOE CONKLING. 
 
 The Senate having under consideration the bill (S. jSTo. 1153) to provide for and 
 regulate the counting of the votes for President and Vice-President, and the decision 
 of questions arising thereon, for the term commencing March 4, A. D. 1877 — 
 
 Mr. CONKLINGsaid: 
 
 Mr. President : Before reaching the details of this measure or its 
 advantages or wisdom, we must make sure of the power, is some mode, 
 to subject the verification and count of electoral votes to the action 
 of the two Houses, or to the law-making power. A study of the ques- 
 tion years ago, convinced me of the right and therefore the duty of the 
 two Houses, to ascertain and verify electoral votes and declare the 
 true result of i^residential elections, or else by an exertion of the law- 
 making power to declare how these acts shall be done. My present 
 judgment does not rest however wholly on preconceived opinions. 
 Some weeks ago, when the inquiry came to be invested with unpre- 
 cedented importance, I reviewed carefully every act and proceeding 
 in our history bearing upon it, and, without the aid then of compila- 
 tions made since, every utterance in regard to it to be found in books. 
 
 A distinction may be drawn between the power of the Senate and 
 the House themselves to execute this duty directly by force of the 
 Constitution alone, and the power of Congress by law to direct it to 
 be done in any way other than strictly and literally by the two Houses. 
 It is not my purpose at this moment to exjjlore this distinction, nor 
 to inquire how far, or whether at all, the Constitution inculcates the 
 exact mode or form in which the two Houses, or Congress, shall exe- 
 cute the twelfth article. If the function and duty there commanded 
 be within the province of the two Houses, or if the Constitution leaves 
 to the law-making power the right to declare the mode by which 
 presidential elections shall be verified, the proposed bill is competent, 
 as 1 may attempt hereafter to show. If the two Houses are them- 
 selves by the Constitution commanded to count the votes, the bill 
 executes the Constitution. If, however, the true meaning of article 
 12 merely commands the votes to be counted, without declaring by 
 whom they shall be counted, then Congress, the repository of " all 
 legislative powers," is directed how to proceed by the concluding 
 Avords of section 8, article 1. It is there ordained that — 
 
 The Congress shall have 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 Oovernme't}t of the United States, or in any department or 
 officer thereof. 
 
 But if the power in question is deposited by the Constitution, and 
 is not deposited with the two Houses, neither the bill on the table 
 nor any bill, rule, or plan seeking to draw I he count of electoral votes, 
 
or their examination, witliin the jurisdiction of the two Houses or of 
 Conj;rcss, isof the slightest efticaey or validity. If,bytheCoustitution, 
 tlie Senate and House are only spectators of the count, there is an end 
 of the matter as to them and as to each of them. Any action by either 
 House, is then sheer intrusion — any statute proposing action, is null, 
 and an attempt to violate the Constitution bj' usurping powers it 
 withholds. It" the power to ascertain and count is vested in the Pres- 
 ident of the Senate, i)erhaps the form of his proceeding — for example 
 ■whether he shall take up the States alphabetically or otherwise in 
 opening certiticates, might 1)0 prescribed by law. But any act or rule 
 to strip him of the power or of any part of the power reposed in him by 
 thoConstitution, wonldbeplainly void. The Constitution declares that 
 the President of the United States shall be Commander-in-Chief of the 
 Army and Navy. A statute declaring the Secretary of State, or any 
 body save only the President alone, Commander-in-Chief, or putting 
 any onein partnership with him as Commander-in-Chief, would benuU. 
 Nor does it alter the case if the Constitution vests power by implica- 
 tion rather than by express words. It matters not what words are 
 employed, whether they be palpably explicit, or so general or few that 
 resort niust be had to construction to ascertain theLr force and mean- 
 ing. Whenever a power is by the Constitution, in auy form of words 
 whatever, deposited with an otiicer or department, there it is, and there 
 it must remain as long as the Constitution remains unaltered. 
 
 It has never been seriously contended, at least never until of late, 
 it never was seriously contended until we had "a case on hand," if 
 I may borrow a jthrase from a distinguished Senator, that this power 
 belongs to one House alone, or to one House more than to the other. 
 Most of those who challenge the competency of a bill dealing with 
 the subject, maintain that the power resides in the President of the 
 Senate. If then the bill before the Senate executes the Constitution 
 whether the twelfth article requires the count to bo by the two Houses 
 literally, or only requires that Congress shall cause it to be made, it 
 cannot trench on the Constitution unless the President of the Senate 
 is endowed with the power to conduct and determine the count. 
 
 This qtiestion I propose to examine by the text of the Constitution, 
 aided by the settled rules of construction, by the opinions of the most 
 illustriiius men of four generations, and by the practice and acqui- 
 escence of the nation and of all departments of the Government for 
 eighty-seven years. 
 
 The President of the Senate is clearly the person to whom the elect- 
 ors are to transmit, in a sealed packet, the certiticate of their own 
 appointment, and of the ballots tlicyciist — he is clearly the person 
 who is to keep these packets, and keep them inviolate, till the day 
 comes when the law says that Congress shall be in session, the certi- 
 ficates shall be opened,'the votes counted, "and the persons who shall 
 till the ofiices of President and Vice-President ascertained and de- 
 clared agreeably to the Constitution." 
 
 How the President of the Senate, rather than some other person or 
 ollirer, came to be .selected as the custodian of these sealed packets, 
 we are not left to conjecture. The history of the formation of the 
 Constitution informs us. The selection was made in a draught or plan 
 afterward disapproved in its chief feature. By that plan it Wiis pro- 
 jiosed to give to the Senate alone the choice of the President in case 
 of a failure by the electors to choose him. An incident, and a natural 
 incident of this arrangement, was to commit the custody of the cer- 
 tificates to the i)residing ollicer of the body which was to elect the 
 President if none was found to have been chosen. This proposal w;is 
 
5 
 
 rejected, and the power to choose the President in case none had heen 
 chosen by the electors of the States, was conferred on the House of 
 Eepresentatives. Other changes were made, but the original draught 
 served throughout as the basis of action. Alterations were made in 
 it, but without discarding it totally and beginning anew, just as al- 
 terations are usually made in a bill by amendments, one at a time, 
 instead of rejecting the whole bill in gross, and substituting a new 
 one for it. . 
 
 One of the details not thus altered, was the designation of him wlSb 
 should receive and keep, and be responsible for till they were needed, 
 and then produce, the electoral certificates. 
 
 With or without this ray of light falling on the few words whose 
 meaning we must learn, one thing will probably bo admitted by all. 
 It will not bo denied that had any other officer been denoted as the 
 President of the Senate is, his duty, power, and prerogative, would be 
 exactly the same. Had the President of the United States, or the 
 Secretary of State, or the Speaker of the House, or the Secretary of 
 the Senate, or the Clerk of the House, been the officer named, in 
 either case the same words would confer on him the same power and 
 imj)ose the same duty now reposed in the President of the Senate — 
 neither more or less. 
 
 This brings me to the language of Article Twelve of the Constitu- 
 tion. 
 
 It is there declared that the electors shall meet in their respective 
 States, and, within certain restrictions, vote for President and Vice- 
 President, and that they shall make and certify a statement of their 
 proceedings and transmit it sealed to the seat of Government directed 
 to the President of the Senate. The contents were to be a secret. The 
 purpose was to commit to the unpledged discretion of the electors, 
 they being relied on as a body of sagacious unbiased men, the absolute 
 selection of a Chief Magistrate choosing from the whole body of the 
 people. In aid of this purpose they were required to vote by ballot 
 so that even bystanders might not know how an elector voted, or for 
 whom votes were given. To secure and continue secrecy, the votes 
 were to be enveloped under seal, that curiosity might not pry into 
 them, or fraud, alter or destroy them, till they were disclosed to the 
 whole nation. A responsible and trustworthy custodian was essen- 
 tial to their inviolate preservation. The modern practice of parties 
 has overturned the idea of unpledged electors, and now electors repre- 
 sent particular candidates nominated in advance ; the Constitution 
 however remains, and knowing its purpose, the confidence reposed in 
 this regard in the President of the Senate would not be belittling to 
 the highest functionary on earth. An act of 1792, re-enacted in 1874 
 as part of the Eevised Statutes, amplifies and defines the duties of 
 the electors, and among other things requires them to annex to the 
 certificates of their proceedings the evidence of their own appoint- 
 ments. 
 
 Pursuing the Constitution, we find these words following those al- 
 ready referred to : 
 
 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. 
 
 A familiar maxim of construction is, that meaning and eifect 
 must he given, as far as may be, to every word. This is true of the 
 most trifling agreement between men. It must be at least as true of 
 a frame of government laboriously devised and meant to stand as an 
 eternal wedlock between peoples and states. The first words we meet 
 here are "in the presence of the Senate and House of Representa- 
 
6 
 
 tives." The consequence attabhcil to these -words may he somewhat 
 inferred from occurrences in the First and Second Coiif^resses, in which 
 sat eighteen of the thirty-nine men who framed the Constitution. 
 By an act of Conjjress they required that on the day when the per- 
 sons shall be ascertained and declared who shall till the offices of 
 President and Vice-President " the Conj^ress shall ho in session." 
 Perhaps the lirst question which arises is for what was the Congress 
 thus twice re([uired to be in session ? Obviously for some act, or, that 
 its members may be spectators — they could hardly be witnesses of 
 such an act in any reasonable sense if the act is to be done exclusively 
 by one jjcrson. If the President of the Senate alone, is empowered to 
 determine, what shall be counted, and to count, and adjudge the re- 
 sult, it is not easy to see how the two Houses can in any just and ef- 
 fectual sense witness and verify the truth of that he does. They can 
 hear what the oflicer says if he chooses to say anything, but nothing 
 recpiires him to si)eak a word. No declaration even at the end, is re- 
 quired by the Constitution. The whole proceeding may be in silence. 
 But if the custodian of the certificates, after they are opened, chooses 
 to state their contents or elTect, and this be all, the whole transaction 
 is his. He takes up a paper in his seat and peruses it as ho would pe- 
 ruse a letter. The Senators andKepresentatives see him from the body 
 of the Hall, but they no more see or know the signatures or seals or 
 words or ligures appearing on the paper, than if they gazed at the 
 spectacle from the galleries, or saw it as a concourse sees the oath of 
 cilice administered to the President on the eastern portico of the 
 Capitol. If the President of the Senate announces that no one has a 
 majority, the House must either accept the statement, though it 
 may be believed erroneous, and proceed to an election, or the Hotise 
 must disregard the statement and refuse to proceed. The Constitu- 
 tion phtinly states the hinge w^hereon the action of the House must 
 turn. Saying nothing about what auy one shall say or declare, arti- 
 cle 12, dealing with the fundamental fact, ordains that if no one has 
 in truth received a majority of all the votes, and of all the electors 
 appointed, the House of Kepresentatives shall immediately choose 
 the President. The fact proved by the votes, is made the sole crite- 
 rion, and whether it was intended that the House should act on what 
 the President of the Senate might say about the fact, or on what the 
 House itself might know or believe about the fact, is an inquiry I 
 commend to those who suppose that only one peraou, and he not con- 
 nected with the House, is authorized to examine the votes and deter- 
 mine their validity and ettect. If the members of either House sus- 
 pected forgery or error, as matter of right they could take no proceed- 
 ing relating to the count, and if tlie act of the President of the 
 Senate is effectual and binding, it would afterward be too late. It 
 must, however, be admitted notwithstanding all this, that these words 
 in and of themselves may be satislied by supposing that the two 
 Houses, consisting now of about lour hundreil nu'mbers, are required 
 to be present with their ollicers merely to behold a pageant, to see 
 and be seen, as spectators of an occasion wherein they can act uo 
 part. 
 
 The text proceeds. The President of the Senate shall " open all the 
 certiJicates." There is no room for construction hero. This is a plain 
 grant of ])ower to do a certain simple thing, and a direction to do it. 
 Now the l.'inguage changes. "The President of the Senate'" is drop- 
 ped; hedisappe.irs.and nowhere re-appears: "And thevotes shall then 
 be counted." That is, a count of the votes shall then take i)lace ; a 
 count of the votes shall then be had. "The votes shall then be 
 
counted." By whom ? By him ? Ai two Senators have inquiied, 
 why was it not said " by him f ' How easy to add these two little 
 words, " by him !" The men who drafted this solemn instrument, 
 masters of language as most of them were, were so fastidious in taste, 
 so scrupulous in the execution of their work, so determined that words 
 should become exact vehicles of thought, that they appointed a com- 
 mittee on style in order that every syllable might do its needed office. 
 How, Mr. President, would men only ordinarily instructed in the En- 
 glish language have expressed themselves had they intended that the 
 President of the Senate should count the votes ? " The President of 
 the Senate shall, in the presence of the Senate and House of Eepre- 
 sentatives, open all the certiacates and count the votes," are the words 
 which ninety and nine men in a hundred would naturally have writ- 
 ten or spoken. Had they said " the President of the Senate shall 
 count the votes" simply, that would have been plain. Why? Because 
 no man can count or examine the contents of a sealed packet with- 
 out opening it, and there implication would have made all plain. So 
 had they said " open and count the votes." But no, he " shall open 
 all the certificates, and the votes shall then be counted." Why " then ?" 
 If the President of the Senate was to open and count, if it was to be 
 one act at one time in one place by one person, all parts of the act 
 must of necessity be " then," must they not ? Why bring in the word 
 " then ?" But why change the current of the sentence, and why use 
 twice as many words as were necessary or natural, when the effect of 
 doing so would be to bewilder, if not mislead, the reader ? The Con- 
 stitution is terse, sententious, a model of comprehensive brevity. You 
 scan it in vain for another instance of a phrase so loose and needlessly 
 wordy, if indeed the intent was to say that the person who was to 
 open the certificates should also count. 
 
 In the first instance these words " in the presence of the Senate 
 and House of Representatives " were proposed not before the word 
 " counted " but after the word " counted ;" so that it would have stood 
 and it did stand " the votes shall then be counted in the iiresence of the 
 Senate and House of Representatives." In the earlier considerations of 
 the convention the words so standing were accepted more than once. 
 At length the provision was referred to the committee on style, and I 
 beg to inquire for what purpose ? To change the meaning of those who 
 by little accretions of concurrence had built up step by step with pa- 
 tience and care a great fabric of government, destined as they be- 
 lieved to stand so strong and last so long ? Was the purpose of the 
 committee on style and of those who trusted the committee, to take 
 liberties with substance, and to change the essence as it had been 
 agreed to ? O, no, but to define the meaning more sharply, to project 
 it more distinctly and unmistakbly before the minds of those who in 
 a far future would appeal to this instrument as the testament and 
 revelation of free institutions. When the committee reported these 
 words to the consideration of the convention for final and perfected 
 action, they stood as they stand now "in the presence of the Senate 
 and House of Representatives, open all the certificates, and the votes 
 shall then be counted." Was it ever, in all the scrutiny which those 
 words underwent, proposed to use such words as would commit the 
 power compressed into the word " count," to the President of the Sen- 
 ate ? Were any of the forms I have suggested or other forms clearly 
 denoting that, ever proposed at all ? No, sir ; but on the contrary, 
 after all this care, and painstaking, the words as we see them were 
 adopted, as the last, most deliberate, consummate act of the constitu- 
 tional convention. 
 
8 
 
 If we thoughtfully read these wortis, aud the change they intro- 
 duce into the sentence, several intents appear in dnjpping the Presi- 
 dent of the Senate and employing the present phrase "the votes 
 shall then he counted." What' " votes ? " Not all votes. " All the 
 certificates" are to he opened, but not all votes are to he counted. 
 " Iht votes" are to " be counted." What votes? The constitutional, 
 valid, true votes; not six votes from Oregon although six ajjpear; 
 not necessarily the three votes certified by the governor of Oregon 
 although he is the certifying officer by the act of 17t>2 and the only 
 certifying officer known to the national laws ; but the three honest 
 votes, if there are three. These three, and only these, are to be 
 counted. Counting and ascertaining becomes substantial, and we see 
 reasons for so making it, if we recur only to the exclusions provided 
 by the Coustitution. The honorable Senator from Indiana said yes- 
 terday thcit tbo President of the Senate — I borrow his plirase — is to 
 count everything " good, bad, and indifferent." Mr. President I dis- 
 sent fi'om this position. The act of 1792 already referred to declares, 
 speaking of the proceedings in question : 
 
 That Confrress sbnll bo in session * * * and the said certificates, or so many of 
 them as shall have been received, shall then be opened, the votes counted, and the 
 periions who ghall fill the offices of President and Vice-President ascertained and de- 
 clared, agreeably to the Constitution. 
 
 The Constitution names fiveinstancesm which no majority of votes 
 shall work the ascertainment to fill the office of President of the 
 United States. Was it designed that votes cast for one dead should 
 be counted, hnd that he should fill with an aching void the office of 
 President of the United States ? Would that be " agreeable " to the 
 Coustitution ? Was it designed that votes forged should be counted ; 
 votes, not certified or certified by an usurper, counted blindly and 
 without inquiry f Was it designed, if lying on our table be a record 
 denouncing against a convict on impeachment perpetual exclusion 
 from every otJicc of prolit, emolument, or trust, that votes cast for 
 him should he counted and made eftectual,and this, because although 
 not good, such votes might be " bad or inditlerent ?" No, Mr. Presi- 
 dent. Should the State of Massachusetts send here an electoral cer- 
 tificate on which should appear as the first two electors the names of 
 my honored friends the Senators from Massachusetts, aud if then 
 should follow as electors the name of every Kopresentative from 
 Massachusetts, designating them respectively as Senators aud Repre- 
 sentatives, I should read in the Coustitution that " no Senator or 
 Representative " shall be or shall even be " appointed an elector," 
 and I should say those votes, although they miglit be "bad" or " iu- 
 difl'erent," were not to be held good until they were at least con- 
 sidered. "Agreeably to the Constitution " some heed must be given to 
 its ]ilain and absolute prolul>itinns. and "bad " votes, that is to say for- 
 bidden votes, are not of course or by main force to be counted as if 
 they were " good" votes, which is to .say legal and constitutional votes. 
 
 But, it has been said that the power of the President of the Senate, 
 thougli not expressed in the Coustitution, may be implied from that 
 wliicli is exjiressed. It has been whisjiered that the President of the 
 Senate may, in a closet or a cornier, a month in advance, adjudge, deter- 
 mine, and conclude the electoral count by refusing to receive any cer- 
 tificate except that which ho chooses in the end tocount. That is, ho 
 may decide that he will receive two certilicates from Oregon, that 
 being a large if not a populous State, but that one each must suffice for 
 all tlie other States, and so he would take but one. The existing Presi- 
 dent of the Senate, digcharging as he habitually does, with conscience 
 
ami propriety, tlic dntios resting on liiui, has alroacly, I am informed, 
 received contesting certiiicates from the three or lour States from 
 which they come. I have heard no one say aloud that having received 
 them, it will be his duty or prerogative to suppress or conceal any of 
 them ; and therefore I proceed to consider whether by implication ho 
 has the power to judge between them, to determine what shall be- 
 come of them, and what is their legal import and quality. 
 
 The doctrine of implication stretchctl to cover the ground here in- 
 volved, may be said to derive implication from implication, or rarher 
 to ' -raft implication on implication. The argument seems to bo first, 
 that because the President of the Senate is the custodian of the cer- 
 tiiicates and directed to open them, it may be implied that he has 
 power afterward to count the votes they contain ; and then from that 
 implied power it may be implied that he has the power to determine 
 what shall be countecl ; and then from this second implied power may 
 be implied the power to decide and affirm the etiecd of the count he 
 has nuide, and of the votes he has held valid. 
 
 The argument in favor of the authority of the President of the 
 Senate certainly deserves respectful consideration. It has found no 
 Toice in this debate. It is a position against which, if I mistake not, 
 every member of this body on both sides, save four, stands on his oath 
 recorded. I repeat it has found no voice in this debate ; but I receive 
 it respectfully as a suggestion which I must weigh carefully, because 
 beyond these walls the thought has been advanced by those whose 
 words and opinions are entitled to be weighed. 
 
 The doctrine of implication or implied powers as long and unchang- 
 ably known to the law, may thus be stated : When power is given to 
 do a thing, permission is implied to employ the means to do it. What- 
 ever is essential to the full and complete execution or enjoyment of 
 a thing granted, is deemed to be granted also. Experience abounds 
 in illustration of this species of intendment. A spot of ground is 
 granted in the midst of a great field. It is implied that the grantee 
 has granted to him also a right to i)ass over the intervening ground to 
 get to his possession. When the Constitution empowers Congress to 
 coin money, to borrow money, to establish post-offices and post-roads, 
 power is implied to resort to the needed ways and means, and thus, to 
 authorize banks, and mints, the acquirement of real estate, and the 
 like. This is the doctrine of the old Supreme Court with Marshall 
 at its head, in McCuUoch vs. Maryland, in Weston vs. The City of 
 Charleston ; and in many noted cases since. When the Constitution 
 authorizes the President on the call of a governor or Legislature to 
 employ troops Tipon the happening of a certain contingency, the power 
 is implied in him to inquire and determine whether that contingency 
 has arisen. So said the Supreme Court in the case of Mott vs. Martin. 
 
 But the terminus and boundaries of this doctrine, are as certain as 
 legal bounds can be. Whatever is essential or conveniently condu- 
 cive to, or fairly in aid of a granted power, may be implied or inferred ; 
 but nothing more. Here is the end, in reason, and in law 
 
 Implication operates in favor of the right to do an act minor to and 
 involved in something beyond which is expressly authorized. Power 
 to do a limited and defined thing, does not ordinarily work power to 
 do a greater thing— the greater contains the less, not the less the 
 greater. Power to do an act of one species or nature, does not work 
 by implication power to do a separate act of a different species or na- 
 ture, ijarticularly an act of more exalted nature, not essential to the 
 act expressly authorized. Power to do a ministei-ial act does not imply 
 power to act judicially. Authority to act as custodian of papers, does 
 
 s 
 
10 
 
 not confer lioen.se to exercise transcendent powers of sovereignty, or 
 of sup-eme ultimate political ami public determination. Express au- 
 thority to do a given thing never implies power to do anything what- 
 ever lifter the act authorized is completely done and ended. The 
 oertilicati's must be opened before their contents can be examined or 
 pa.sscd upon — th»!y nuist bo opened before counting their contents can 
 begin: how then can power to judge and ascertain afterward, be 
 inferred from power to produce and open beforehand ? How^ can the 
 latter be incident to the former ? Breaking the seals is merely pre- 
 fatory to a wholly difterent proceeding. 
 
 A clerk of a court, or the presiding justice, is made the recipient and 
 custodian of ]»apers— he is to keep them untouched and sealed till a 
 certain day, and then he is to carry them into court and ojten them. 
 Would a statute declaring that the papere should then be acted on, 
 orshouldthen undergo examination, or that facts of which they were 
 evidential should then be found, mean that the clerk, or the one justice, 
 and not the court, wsis to act on the papers, or pass upon them, or lind 
 the facts from them, and would his power to do any or all of these 
 things be implied from the fact of his being the custodian of the 
 packet ? 
 
 If, in the instance supposed, the sheriff were the custodian, and the 
 contents of the packet were warrants and summons, and the statute 
 declared that these writs should then be served, how should we know 
 who was to serve them ? The appropriateness of the sherift' for such 
 a puqiose would suggest him as the proper person, but this is not 
 all. We should know it was the sherift' who should act, because the 
 law declares that the sherift' shall serve all such writs. 
 
 But in the case supposed if the statute said" and the validity and 
 effect of the writs shall then be passed upon," should we infer that 
 the sheriff" was to i)ass upon t hem, and this because the law made him 
 their custodian ? We should know the court was to do this, merely 
 because the function is judicial and the court is a judicial body and 
 80 authorized by law. 
 
 Apply the rule to the matter before us. We know too well the na- 
 ture of the possible inquiries involved. Committees have gone far 
 and wide to conduct them. My distinguished friend from Wisconsin 
 [Mr. llowi:] has pained us by iiis absence for weeks, because deputed 
 by the Senate to tarry in a distant State. Many other Senators have 
 douo the like. The framers of the Cimstitution knew and jjondered 
 the sort of problems which might arise for solution: they luive left 
 us evidence that they were not immindful of some of the questions 
 which now confront us. 
 
 My incpiiry at tliis i)oint is whether the President of the Senate is 
 so e(iui])i)ed for set tling disi)nted quest ions of fact, is so endowed with 
 facilities for resolving i)roblems like these, that reason and intend- 
 ment point to him alone as the tribunal to decide? 
 
 The person having the largest number of votes, of valid, legal 
 votes, be it a majority, is to be the President. The (piestion is, who 
 " shall fill the oflico of President f " The Constitution has named, as I 
 said, at least live cases in which, although a majority of votes be given 
 for a candidate, he shall not till the office of President. No i>ei-son 
 shall till the office of President unless he be a native-born citizen; no 
 person shall fill the oUice of President unless he has attain, d the age 
 of live and thirty years; no ])erson shall till the oftice of President 
 unless he has beeii ft)nrteeu years a resident of the country ; no per- 
 son shall ffll the oftiie of President chosen by the votes of electors 
 in the State wherein he resides who voted also for another person in 
 
11 
 
 the same State for Vice-President ; no person shall fill the office of 
 President who, having heen impeached by the grand inquest of the 
 nation, has been branded by the votes of two-thirds of this body and 
 immutably disqualihed. The certificates may be forgeries, the pre- 
 tended electors may not be the true electors, ho who assumes as gov- 
 ernor to certify the electors may not be the governor at all. 
 
 These and other questions may arise ; still higher and larger ques- 
 tions may arise. Has the President of the Senate power to send for 
 persons and papers; to compel the surrender of telegrams, and im- 
 prison witnesses if they will not give them up ? Who has that power ? 
 Who had it when the Constitution was made ? Was there any body 
 who familiarly in hoth hemispheres had wielded such power ? Yes, 
 sir, the British Parliament for ages had possessed and exercised the 
 power to judge of the election, qualifications, and returns of officials. 
 The State Legislatures on this continent had done the same thing. 
 Joint meetings of two legislative houses had long been common. 
 It had been customary for the Lords and Commons to assemble in joint 
 conference, and their rules relative to such meetings, more than two 
 centuries old, stand I believe even to this day. So, after our Constitu- 
 tion was adopted it was customary for the Senate and House to meet 
 and sit together to receive the message or speech of the President of 
 the United States. The two houses of State Legislatures, from the 
 beginning, have assembled together ; they do so still, not only to elect 
 regents of universities, not only to choose Senators in Congress, but 
 to see opened, to canvass, to ascertain, to determine the count of votes 
 and the results of elections. The honorable Senator from Ohio sits 
 before me [Mr. Thurmajj] and seeing him reminds me of an ancient 
 custom in his State. As early perhaps as 1802 the State of Ohio had 
 I think in its fundamental law substantially the words of our Con- 
 stitution " the presiding officer shall open the certificates in the pres- 
 ence of the two houses and the votes shall then be counted." Was 
 this the provision ? 
 
 Mr. THURMAN. Pretty nearly. 
 
 Mr. CONKLING. I ask the Senator from Ohio to correct me if I am 
 wrong in saying that even at that early day and always during the 
 maintenance of that constitution, it was the settled and uncontested 
 understanding that the presiding officer merely opened the certificates, 
 and that the two houses of the Legislature of Ohio together proceeded 
 to count or canvass the votes. Am I right in that ? 
 
 Mr. THURMAN. That is right as to the governor. 
 
 Mr. EDMUNDS. The chief magistrate. 
 
 Mr. CONKLING. The chief magistrate of the State. I ask then 
 whether it can be doubted that the men who employed the words 
 "and the votes shall then be counted" knew of a tribunal or body 
 having powers and faculties adequate to the conduct of such a pro- 
 ceeding ? 
 
 It has been said that the count is a mere addition of units ; that 
 nothing is needed to count except common honesty and common sense. 
 I do not understand the word to be so employed in the Constitution. 
 Counting may be of diflerent kinds. To count my fingers is a purely 
 ministerial act and very simple. To count a pile of papers is a min- 
 isterial act. To count bank-notes in which there may be counterfeits; 
 and separate the true from the false, is more than a ministerial act , 
 it requires judgment ; it involves faculty. To " open all the certifi- 
 cates " is a ministerial act ; as my honorable friend from Vermont 
 [Mr. EuMUXDS] suggests, as a porter might open a bale of goods. It 
 is purely a ministerial act. But to count the votes, is something more. 
 
12 
 
 Why ? " All the certificates " are to be opened ; but not all vot«9 are 
 to be counted. The valid, constitutional votes, and no other votes, 
 are to counted; and he who counts theiu, with his lau in his hand, 
 must winnow the wheat from the chati", if there be chart". If New 
 York sends 4.'j votes as electoral votes, they are not all to be counted, be- 
 cause New York is entitled to only '.i't electoral votes. They are to be 
 sorted, the bad and inditi'erent are to be separated from the good, and 
 only the :i.^ true constitutional votes are to be counted; because they 
 who wore intruders or ignorant ly added their names to the roll, did an 
 act unauthorized, and thoreforo'void. If the certificate of Massachu- 
 setts shuuld bv accident or fraud show that her votes were cast for 
 the democratic candidates, the world knows that Massachusetts voted 
 for the republican nominees, and, therefore, the certificate is not to 
 be blindly counted, or counted at all without inquiry and verifica- 
 tion. If electoral votes are cast for Julius Ca?sar— or for Harry the 
 Eighth, or a British subject— they are not to be counted without in- 
 quiry. 
 
 An illustration of the diflterence between these two kinds of count- 
 ing, may be found in an incident of the last examination of electoral 
 votes, in 1873, four electors of the State of Georgia voted for Horace 
 Greeley. What was the objection to thatf Why should they not vote 
 for one of the most eminent members of one of the largest professions f 
 What was the difficulty ? Was there any doubt that the electors 
 were appointed ? No, sir. Was there objection to their election ? 
 No, sir. Was not Georgia a State in the Union f Had not every pro- 
 priety and mandate been observed? Yes, sir. But a Representative 
 from'the State of Massachusetts rose in the meeting of the two Houses 
 and said : 
 
 I object to the count of those votes ; I object because it is aunouDced that Mr. 
 Greeley was buried ou the day on which those votes were cast. 
 
 Let me be more explicit with the Senate in stating the process of 
 the member who made the objection. Legally dissected, his state- 
 ment was this : " The certificate is blameless on its face ; there is a 
 State behind i't ; these four men were legal electors ; but the news- 
 papers have announced that Mr. Greeley was buried on the day the 
 votes were cast : nobody has said he was buried alive, therefore it 
 may be concluded, and the Hou.ses may act upon it as a fact, that Mr. 
 Greeley was not alive when the ballots were given." The two Houses 
 separated. In this House, the honorable Senator fron\ Vermont [Mr. 
 Edmunds] proposed a resolution declaring that these four votes 
 should not be counted. The Senator from Ohio before me [Mr. TiifR- 
 MAX] moved to amend by striking out the word " not," which amend- 
 ment prevailed. I then moved an amendment, to add to the resolu- 
 tion, which then declared that tho.se four undoubted votes for Mr. 
 Greeley should be counted, words declaring the function of the two 
 Houses in counting the votes to be ministerial as distinguished from 
 the eftect of that count or of those votes. Recently it has been stated 
 that by tliis proposed amendment I had oxpres.seil the opinion that 
 countinii any votes, in any sense within the power of the two Houses, 
 is jmreiy ministerial! O", no, sir, 1 olVered the amendment to have 
 it appear that when the Senate said votes for a deatl man shimld be 
 counted, the Senate meant merely that being the votesof legal elect- 
 ars they should be enumerated, and announced, not that they suould 
 in legal efVect be counted so thai had tliere been a majority of vot<^s 
 for one ilead it would follow that tlie Houses would ascertain and 
 declare that a dead man should "fill the oHice of Prositlent of the 
 United Slates." While these proceedings were progressing in this 
 
13 
 
 Chamber, the House considered the four Georgia votes also. The House 
 said the vote should uot be counted at all iu any sense, and so they 
 were ignored and rejected. I refer to this to distinguish between 
 counting the chairs in the Senate Chamber, and doiug that which is 
 involved in the constitutional direction touching the electoral votes. 
 The word " count " does not govern so nmch as the words " the 
 votes," the question always being what arc " the votes " iu the sense of 
 the Constitution and of truth. The power which makes this determma- 
 tionis not technically judicial. Why? Because the question does 
 not arise in a judicial proceeding. It is quasi judicial. It is the power 
 to jud-'e ; it is the power to decide mixed questions of law and fact ; 
 it is the power, bv judgment, to affirm truth and fact. The power 
 to judge -whether a bill shall pass or uot, is not technically judicial; 
 neither is it ministerial. 
 
 The power to pass on the validity and effect of electoral votes, is 
 political: Yes, it is political; its exercise may involve the very high- 
 est attributes of sovereignty. When Colorado is reached, suppose a 
 Member or Senator rises and says " I object to the votes of Colorado, 
 because she is not a State in the Union." In the case of Colorado 
 there is no doubt ; but the question is the same as if she were shrouded 
 in doubt. The question is, shall her vote be counted. The objection 
 is that she is not a State in the Union, and the coimt or refusal to 
 count her vote, is the only response to the objection. No higher polit- 
 ical question can be solved or asked. Is she a State in law and in 
 fact ? Sir. President, nations have fought over that question for cen- 
 turies. A State to-morrow may stand under the uplifted banners of 
 revolt ; she may pass an ordinance of secession, prostrate all the forms 
 of government, make treaties with foreign nations, seize the forts, 
 arsenals, post-offices, custom-houses, dock-yards, and ships of the na- 
 tion, and march an army into sister States. Shall her vote be counted ? 
 It is no answer to say,' the law-making power may fix her status in 
 advance. If her certificate is here, the question is, shall her votes be 
 counted; and he who has the power to decide that question may de- 
 cide it as he lists. The law-making power may have acted, or may 
 have had no time to act, and what may be the force and effect of its 
 action if it has acted, is only a factor in the open question. 
 Mr. EDMUNDS. An indeterminate one at that, on this theory. 
 Mr. CONKLING. Yes, an indeterminate one of course. A minor- 
 ity, but a considerable minority of the Law Committee of the House 
 of Representatives is said to have reported that Colorado is not a 
 State, that she is inchoate, inconsummate as a member of the Union, 
 her statehood being in the chrysalis. Suppose, armed with this re- 
 port, a member of the House objects to the count of Colorado's vote. 
 The law-making power has acted, but the very question would be 
 what is the force and effect of that action ; and the Senator from Ver- 
 mont may well say the action is indeterminate. If the Constitution re- 
 poses in you, sir, the prerogative and duty of determining what votes 
 shall be counted, who are the members of the sisterhood of States by 
 whom the Chief Magistrate is to be elected, whether you might weakly 
 lean upon the opinion of somebody else or not, I will not consider ; 
 but you and vou alone at tiirst and at last are to solve the question. 
 Indeed, if I were to accept what was said by the Senator from Ohi(i 
 [Ml-. Sheumax] this morning, I should begin to doubt myself whether 
 my friends from Colorado are members of the Senate. I understood 
 the Senator from Ohio to argue that the two Houses by law cannot 
 enact in advance that on the happening of a certain contingency, a 
 certain legal veritv aud conclusion shall become established. He 
 
14 
 
 stated that expressly, if I understood him aright. If that be true, awk- 
 ward indeed would be the dilemma of Colorado. Congress, by an en- 
 abling act, authorized the then Territory of Colorado to assume state- 
 hood, the act declaring in advance that upon the happtning of cer- 
 tain contingencies and proclamation thereof by the President of 
 the United States, she should beci^me crowned with statehood, 
 with like force and eft'ect <i« if she stood full-grown and proclaimed 
 before the adoption of the act. The President has made that procla- 
 mation, evidential of that contingency ; and the act of Congress, speak- 
 ing afresh when the condition is complied with, Colorado is as com- 
 jdete in her rights as a member of the Union, as is the proudest or the 
 most ancient State in all the sisterhood. But the Senator from Ohio 
 disputes the doctrine by which she is here, and in so doing he confronts 
 and combats the Supreme Court. That court long ago heltl in the 
 embargo cases that such legislation in advance, incomplete, inconclu- 
 sive, and inoperative, until the happening of an external contingency, 
 is competent, and becomes effectual when the contingency occurs. 
 
 Mr. EDMUNDS. According to the judgment of the President of 
 the United States. 
 
 Mr. COXKLING. And as my friend reminds me, the contingency 
 resting on the action and judgment of the President of the United 
 States. 
 
 But, Mr. President, I wander from the purpose. I liad alluded to 
 the pro])ortions of questions lying within the power to decide whether 
 electoral votes or alleged electoral votes shall or shall not be counted 
 and made efficacious. I now maintain tluit the scope and va.>itness of 
 this power, and of the questions and possibilities it may involve, are 
 the measiue of the certainty and clearness with which it iiuit-t bo 
 conferred. Loose intendments will not do. Loose intendments may 
 suffice for paltry uses; but in the last quarter of the nineteenth ceu- 
 tury loose intendments will not satisfy forty-five million free peojile 
 that such supremacy resides in one functionary who may be made to- 
 day by one majority of the votes in this single Chamber, and unmade 
 to-morrow by the change of a single vote. 
 
 Do reason, and the tituess of things suggest that our fathers meant 
 the President of the Senate should be the one man. even if there 
 were to be one man, to decide Avhcther alleged iiregularity or fraud 
 should vitiate the vote of a State, and turn the scale in the choice of 
 Chief Magistrate of the Republic ? Is such jjower so suited to one 
 man, rather than to the American people in Congress assembled, that 
 wisdom will extract it from words which drop him and turn away 
 from him? The Constitutiim, speaking to you, Mr. President, com- 
 mands you in the jjrosence of the States and of the people to produce 
 and open all the certilicatcs, and at that mouiout it turns its back on 
 you. Will reason from such words, even if they be doubtful words, 
 extract such transcendent prerogative, and repose it with him who is 
 lilcely to sit as the sole judge in his own case f 
 
 Six times already, has the President of the Senate been one of the 
 presidential candidates for or against whom the count was to bo 
 made. Was this not foreseen by the framers of the Constitution f 
 The very men who drafted it proceeded in seven years to make the 
 President of the Senate their own successful presidential candidate. 
 And so, we are asked to believe that our fathers intended to make one 
 individual the sole judge in his own case, though divine law andcivi- 
 lizi'd jurisprudence ha<l declared since the morning of time that no 
 man should ever be judge in his own case, not even if other judges 
 sat with him. In leiUO the authore of the Constitution, creating a 
 
15 
 
 committoe of fifteen to do what the commission now proposed is to 
 do, provided jealously that no candidate, and no man of kin to a can- 
 didate should be of the committee. The other day wo had under con- 
 sideration a coustiisutional amendment committing to nine jndj^es 
 holding their connnissions for life, and as independent of parties and 
 factious as is the monarch of the skies, the count of presidential votes, 
 and it was there bluntly provided that not one of them should ever 
 be eligible as a presidential candidate until after the lapse of years. 
 This is the modern stantlard of safeguard against self-interest. Yet 
 wo are asked to believe that our fathers, trained men, the victims of 
 abuses under other systems, and profoundly jealoiLs as their words 
 and acts show they were of the weakness the ambition and the greed 
 of man, deposited absolute power with a single individual to decide 
 for himself and for the uaticm whether he should mount the highest 
 pinnacle of American if not of human ambition. They imposed no 
 disability, or even interval of probation, on this one judge, but straight- 
 waj^ they made him the party also with their own hands ! Such a 
 judge we are invited to believe, they so intrenched, that in the pres- 
 ence of the whole nation, because in law every State and every citizen 
 is i^reseut, he might by fraud or error undo tije nation's will and the 
 nation's right, and the nation mustbow mute and helpless before wrong 
 and usurpation. The courts of New Jersey, in accord with courts the 
 world over, have lately said that no act of legislation can make a man 
 judge in his own case, whether he sits alone or with other judges. 
 
 But we are warned that if the Houses have this power, they may 
 baffle a count. They may throw out one State and another State un- 
 til no majority of all the electors aijjiointed remains. No doubt this 
 is possible. Every page of the Coustittitiou presents instances in 
 which the two Houses, or one House alone, may defeat the Govern- 
 ment. One House may refuse to pass appropriation bills, or tax liills, 
 or army bills in war. The States may refuse to appoint electors or may 
 appoint ineligible electors. The electors may refuse to vote or may 
 vote for ineligible candidates. The President of the Senate may re- 
 fuse to receive certificates, or refuse to o\}eu them, or refuse even to 
 produce them. The governor of the State may refuse to certify or he 
 may certify falsely. The Houses may refuse to attend, and so on. It 
 all proves nothing. The answer Jefferson gave, " the Government 
 rests on the consent of the governed." So must every free govern- 
 ment rest while it stands at all, and whenever representatives and 
 States and people forsake the government and leave it to languish 
 and die, it will go down, as other governments have gone, to the sepnl- 
 cher of blasted nationalities and bmied epochs. 
 
 Is a majority less to be trusted than one man ? A bare majority 
 of one House may select a President of the Senate for the express, 
 but secret purpose, of deciding a count and deciding it in a particu- 
 lar way. Is such a creature of an hour, doing the bidding of a bare 
 majority of one House, more trustworthy than a majority of both 
 Houses acting in the open light of day ? Is the decision of one Sen- 
 ator in the case of Oregon, which decision might make him for one 
 year or four years President of the United States, a stronger anchor 
 for the nation than the decision of both Houses of Congress includ- 
 ing that Senator, aided by the proposed tribunal in which five judges 
 of the highest court must sit ? 
 
 Mr. EDiMUNDS. In a Republic. 
 
 Mr. CONKLING. Yes, and in this Republic, the only considerable 
 experiment of free government extant on the globe — an experiment 
 Avhich, should it fail, would turn the clock of ages far back on the dial. 
 
IG 
 
 If the Constitution ordains this one-man power, let every man bow- 
 to it, mystery though it be. But I do not so read, I cannot so read. 
 Tlie canons of construction, the letter and spirit of the Constitution, 
 reason, all revolt against a conclusion so puerile and so perilous. 
 Prudence points with warning hand to a day when paities in the 
 Senate may be revei-sed, and when new majoritii'smayset up presiding 
 officers to wield licentious power under a baneful precedent established 
 now. 
 
 Thus far I have been indicating my own reasoning on the words 
 employed. Let me now ascend to better reasoning. Let us inquire 
 what has been done by illustrious men, sworn as we are sworn, to ex- 
 ecute the Constitution. Let us survey the action of all the genera- 
 tions, and parties, and officia]s,who have proceeded under article 12, and 
 also the action going before the Constitution and setting it in motion. 
 
 Reference has often been made to a resolution adopted by the con- 
 stitutional convention in 17H7. It has been cited as if it defined or 
 construed the power we now consider. On the 17th of September, 
 1787, the constitutional convention adopted two resolutions. They 
 were transmitted to the Congress of the Confederation. The Congress 
 a few days afterward, on the 28th of September, accepted the report 
 without acting upon it otherwise. These accompanying documents, 
 and others, were sent to the States with the Constitution, and the Con- 
 stitution was pro])ounded to be ratified or rejected. One resolution 
 recoimueuded that the Senate should appoint a President for the sole 
 puqjose of opening and counting the electoral votes. Some observa- 
 tions may be made on this resolution in addition to those which fell 
 from the Senator from Vermont. 
 
 In the first place the whole proceeding antedated the Constitution ; 
 it was before it was ratified ; it w;is before it was proposed. Geolo- 
 gists would say it was prehistoric. It was a prefatory, or pro\is- 
 ional proceeding. In the language of the resolution, " proceedings 
 were to be commenced under the said Constitution." The ship was 
 to be launched, and the launch might be by the sails or the machin- 
 ery of the vessel, or by external and imparted force. It might be, 
 as the French would say, by an impulsion ; and those who made the 
 launch chose so to make it. The resolution did not profess to define 
 or construe any clause in the Constitution. It merely designated an 
 occasion, and referred to the objects of that occasion. It did not even 
 profess to conform to the modes which the Constitution would bring 
 in. The Constitution directed that the electors should send their cer- 
 tificates to the President of the Senate. This resolution suggested 
 that they should be sent to the Secretary of the United States. Who 
 was he ? He was the Clerk of the old Continental Congress. They 
 had but one House and had a clerk, and this was the man. The res- 
 olution did not even propose that the counting should take place in 
 the ))rcsencoof the two Houses. 
 
 How did the Senate regard the action thus suggested. 
 
 George Washington had been un.ininiously «hosen President. Every 
 plector had voted for him. The electors themselves had been ap- 
 pointed with unanimity. Everybody from the beginning knew it 
 would be so ; it was matter of coui-se. John Adams had been over- 
 whelmingly elected Vice-Pre-sidcnt. To ascertain, the election, was a 
 Bubstaiil ial and .solemn proceeding, only as it is substantial and solemn 
 for the Secretary of State to announce the Fourth of July, or a holi- 
 day. 
 
 The time "to connuence proceedings," according to the suggestion 
 of the resolution, was JMarcli 4. IT-U Ten States had ratified the Con- 
 
17 
 
 stitution. A quorum of the Senate was 11. No quorum came to the 
 seat of Government till April 6. Then no Senator was sworu in ; it 
 was Jauuary3, 1790, before the oath of office was taken. Till then, 
 there was no Senate and no Seuator, hut only Senators-elect. Ten 
 months before they were sworn in as Senators, and on the (5th of 
 April, 17d9, eleven of those who afterward Ijecame Senators, proceeded 
 to start the Government, and impart life and motion to the Constitu- 
 tion. 
 
 They passed an order. Here it is : 
 
 Ordered, That Mr. Ell.sworth inform the House of Representatives that a qiioram of 
 theSenatei-sfo-med; thataPresiileutis elected f or thesole purpose of opening the cer- 
 tficates and counting the votes of the electors of the several States in the choice of a 
 President and Vice-President of the United States ; and that the Senate is now 
 ready, in the Senate Chamber, to proceed in the presence of the llonse to discharge 
 that duty ; and that the Senate have appointed one of their members to sit at the 
 Clerk's table to make a list of the votes as they shall be declared; submitting it to 
 the wisdom of the House to ai)puint one or more of their members for the like pur- 
 pose — who reported that he had delivered the message. 
 
 Had this order stopped midway, it might more plausibly he said 
 to be a prescription or detiuition or expression of functions and 
 powers. Even then I should deny that it was so ; even then I should 
 hold it merely to designate an occasion and purpose, not to determine 
 or explain the part to be acted by each actor in the details of the 
 transaction to take place. Let me ilhtstrate my meaning : Suppose 
 at the last session before the trial of an impeachment began, the Seu- 
 Jite bad adopted a resolution in these words " Ordered that Mr. Mor- 
 rill be appointed President of the Senate for the sole purpose of try- 
 ing the pending impeachment. Would such an order have implied 
 that the President of the Senate so appointed was alone to conduct 
 and determine the trial ? Certainly not. Why not ? Because the 
 Constitution does not so ordain. The Constitution states how much, 
 and what he shall do, and therefore he could do no more, and it would 
 be violent to suppose that the body adopting the order meant him to 
 do anything save only that committed exclusively to him by law. 
 
 The governor of aStateby order or proclamation appoints a particu- 
 lar judge to hold court for the sole purpose of trying an indictment 
 for murder against A B. We do not understand such a proclamation 
 to mean that the judge so appointed is himself alone to conductthe 
 trial and decide the case. So, had the order of the Senate in question 
 stopped with saying that John Langdou was elected solely for one 
 purpose, I should understand it to mean that he was elected to act 
 the part legally iucumbeut on him in the execution of that purpose, 
 whatever it might be. I should understand the meaning and effect 
 to be that he was not elected President of the Senate permanently, 
 or generally, but that he was elected for one occasion only, or as law- 
 yers would say pro hac vice. 
 
 But unfortunately, fatally I think, for the argument I am combat- 
 ing, the resolution does not stop with declaring that John Langdou 
 was chosen only for a single purpose or occasion ; it proceeds, " and 
 that the Senate is now ready in the Senate Chamber to proceed in the 
 presence of the House to discharge that duty." The Senate is ready to 
 discharge that duty. What duty ? Manifestly to count the votes, 
 along with the House. 
 
 Mr. SARGENT. Why not " then open the certificates ? " 
 
 Mr. CONKLING. I thought I had assigned the reason. Because 
 the Constitution declared who should open the certificates, and it 
 declared that the President of the Senate should do it. In the dis- 
 tribution of duties, it reposed the duty to receive and open the cer- 
 2 CO 
 
18 
 
 tificates, iu the President of the Senate. It expressly gave this duty 
 to him as his share and function in the transaction, and having done , 
 so, it abstained from giving him any other siiare or function. The 
 Senate therefore iu sjii-aking of thf duty repo.sed in itself and the 
 House, did not speak of another duty expressly reposed in somebody 
 else. 
 
 There is I think only one escape from this construction of the 
 resolutiou and proceeding. We may escape it by saying that the 
 proceeding being to inaugurate theCon.stitution, tho.se who conducted 
 it did not deem the Consiitution yet operative, and therefore did not 
 govern themselves by its mandates. If this be so, of course the argu- 
 ment sought from the occasion, favoring the power of the President 
 of the Senate, falls to the ground. 
 
 The resolution proceeds further: 
 
 And that tlu" Senate have appointed one of their members to sit at thoClerk's table, 
 to make a list of the votes as they shall be declared— 
 
 And "declared" here I take it means ''read'' or "reported" or 
 " announced." 
 
 subniiltinji it to the wisdom of the House to appoint one or more of their members 
 for the like purpose — 
 
 What did the House do ? The House appointed a teller, and resolved 
 that it would attend — 
 for the purpose expressed in the message delivered by Mr. Ellsworth. 
 
 I ask again what was that purpose? The House did attend. The 
 tellers ajypoiutcd by the two Houses made the enumeration of the 
 votes. Tlie Houses then separated. What next occurred ' Mr. Madi- 
 son cante to the Semite to say that the House had directed him to in- 
 form the Senate that the House had agreed that the election should 
 be certitied or notilied — now mark — '• by such persons and in such 
 manner as the Senate shall be jileascd to direct." If the Constitu- 
 tion ordained that the President of the Senate should certify and de- 
 clare the result, what had the House to do with it? What had the 
 Hou.se to depute or concede to the Senate? What power could the 
 Senate receive from the House ? What cotild the Senate .sty'or do in 
 the matter, if the power and duty was lodged in the presiding ollicer? 
 The Senate ap]iarently thought however that it had everythinj' to 
 do with the atfair after the House intrusted its part in it to the Sen- 
 ate. 
 
 A committee was appointed to prepare the certificates of election. 
 One (tf the committee w;is Mr. Ellsworth and lie had .sat in the ccm- 
 stitutioii;il eonvntiou. The counait tee drew the cert ilicate, and every 
 word of it. and the President of the Senate was directed to sign it, 
 and he did sign it. He signed it not oi his own nuition, or because 
 authorized by the Cou.stitution, but by the command of the Senate 
 siieakiug for both Houses, ami he signed it as the organ and mouth- 
 piece of the two Houses. 
 
 The cert ilicate recites that he who .signed it had counted the votes. 
 No doubt he eounted them in the sense of arilhmetie. Probably each 
 of the otlier ten Senators did the like, the tellers surely did, but what- 
 ever tiu'V or tiie ])residing otlii'er diil, was done l>y the assent and au- 
 tlmrity— nay by tiie command of the Houses. Had either teller been 
 selected to isigii the cert ilicate, could he not have signed it witheiiual 
 truth f Ihul the committee been directed to sigu the cert ilicate, 
 would it not have beeti ('(jually true as to those who .signed it having 
 counted the votes ? 
 
 Hut now it is said that the certilicate implies and proves that the 
 
19 
 
 President of the Seiuxto exercised the power, and the sole power to 
 judge and determine what should bo counted. 
 
 It is said, and truly, that afterward for many years the certificates 
 used were in this ancient form. So they were. I ask the .Senate to 
 in(iuire whether they meant, or were intended to mean, that he who 
 signed them had exercised the power to judge and determine.— I turn 
 to ISO;"). Aaron Burr was President of "the Senate. In his bad emi- 
 nence as depicted by the Senator from Ohio, he was clear-headed and 
 intrepid, and was never charged with being dillident of prerogative 
 or distrustful of himself. 
 
 I ask the Senate to hear Avhat Aaron Burr said when the electoral 
 certificates were to V)e opened. 
 
 Mr. MORTON. From what does the Senator read ? 
 
 Mr. CONKLING. I read from the compilation on page 3G: 
 
 Mr. Burr stated that pursuant to law there had been transmitted to him several 
 packets, whicli, from the indorsements upon them, appeared to he the votes of the 
 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 hi'm in due 
 time. 
 
 From this point, observe his words. He was addressing the Sena- 
 tors and Representatives. 
 
 Tou will now proceed, gentlemen, said he, to count the votes as the Constitution 
 and laws direct, adding that, perceiving no cau.se for preference in the order of 
 opening the returns, ho would pursue a geographical arrangement. 
 
 Turn now to the certificate of this count ou the next page, page 37. 
 There is the ancient form copied, "the undersigned certifies that he 
 has counted the votes," although fresh on his lips were the words, pre- 
 served in the same record, that the Constitution committed it to the 
 representatives of the States and the representatives of the people to 
 conduct the count, and beside these words, is the attested fact that the 
 count was actually conducted by the two Houses through their tellers. 
 Turn to the proceedings in 1817. Indiana had entered the Union. Indi- 
 ana wasa State. Her Senators sat here, and in the House of Represent- 
 atives sat William Hendricks, the ancestor of one of the recent can- 
 didates for Vice-President. Mr. Taylor from the State of New York 
 when her .certificate was read, rose and said "I object to that vote." 
 It was alleged that Indiana less observant of right and truth than she 
 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 
 other irregularities were laid at her door, and her votes were objected 
 to. What occurred ? Did the President of the Senate assume to deter- 
 mine? No, sir. Mr. Varnum, a Representative from New York,— and 
 there was no twenty-second joint rule then,— Mr. Varnum moved that 
 theHou.ses separate to decide whether the votes should be counted or 
 not. The two Houses did separate ; thev did debate ; they did con.sider. 
 Nobody suggested that the President of tiie Senate had anything in 
 the world to do with it ; but yet in 1817, as usual, we find the certificate 
 identical throughout with the earliest one. The tellers made the 
 enumeration ; the two Houses conducted the count ; the President of 
 the Senate did nothing, except what he was commanded to do; the 
 two Houses prescribed the form of the certificate ; they directed liim 
 to sign it and he did sign it, and the certificate stated that he counted 
 the votes. No doubt he did in the arithmetical sense ; he hcaril the 
 tabulation read ; he looked at it ; he was convinced of the corrwtness 
 of the enumeration ; he announced it to the Houses. Again, see what 
 John Adams stated on the 3d of February, 1797. Committees had been 
 appointed, as they always were from 1793, beforehand, for what '! "To 
 
20 
 
 ascertaiu and report tbe mode in which the elecToral vote shonld be 
 examined -'—a bald usiupation, if the President of the Senate had the 
 right to examine — they had reported directing the President of the 
 Senate, to do certain things, one of \rliifh was on receiving the count 
 fiom the tellers to declare the result. When Mr. Adams came to per- 
 form his duty, speaking on his oath, and speaking that the nation 
 might hear, what did he say? That he derived his power from the 
 Constitution, that the Constitution conferred on him this high pre- 
 rogative ? O, no, sir : 
 
 In obedience to the Constitution anil law of tlie United States and to the com- 
 mands of both Houses of Congress expressed in their resolution passed at the pres- 
 nt session, I now declare, et cetera. 
 
 At this point, as well as at any time. I may refer to a remark of 
 Chancellor Kent, read yesterday by the Senator from Indiana, as if 
 it were authority against the pending bill. This remark fill from 
 the lips of the chancellor in one of the earlier addresses he made to 
 college students. These lectures, when they Itegan. were not designed 
 as chapters of a law-book. Their author did not then know, that they 
 were to be the germ of commentaries, which, growing in exactness 
 and care, were to increase into one of the most famous and copious 
 repositories of the law. They were designed originally to beguile the 
 heaviness of unwonted and unwelcome leisure. The chancellor had 
 left the bench at sixty, the constitutional limit : and as he says iu 
 some touching words which i)reface the earlier editions, he dreaded 
 the heaviness of hours imemi)loyed. He went into the Columbia Law 
 School and held discourse mingled of history and.juri8i)rudence, gen- 
 eralized and elementary dissertations designed to im]>art outlined in- 
 struction to beginners in the study of the law. I think I must have 
 borrowed some of his words. Yes he says that " They are of that 
 elementary kind which is not only essential to every person who pur- 
 sues the science of the law as a practical profession, but is deemed 
 useful and ornamental to gentlemen in every pursuit." Thus speak- 
 ing to young men of affluence who were laying the inundations of 
 culture at large, we obsefve that the language he em])loys is naturally 
 iuconclu.sive and regardless of judicial precision. What does he say: 
 
 In the case of questionable votes and a cloBely contested election, this power 
 may bo all-iiuport<iut. 
 
 That is, the power to count. I stop a nu)ment to remind those who 
 think that the count is more arithmetic, of the condenniaiion of such 
 a view involved iu these words. 
 
 Ill the case of qucstiouablo votes and a closely contested election, this power 
 may be all important. 
 
 I submit that if everything, good. bad. and iuditJerent. is as we 
 have been told to be counted, as the multij)licatii)n table is said, there 
 would be no " (luestionable votes,"' nor would the power to count, be 
 "all important," or imi)ortant at all. The sentence cnntinues: 
 
 And I presume, in the absence of all lepslative provision on the subject tJiat the 
 President of tlie Senate counts the votes and determines tbe result, and that the two 
 Houses are present only as spectators to winiess the fairness and accuracy of the 
 transaction, and to act "only if no choice be made by the electoi-s. 
 
 These words suggest three observations. 
 
 " I presume." I need not ask lawyers whether that is the deliber- 
 ate and considered phra.se of a great magistrate long accustnimd to 
 weigh questions in exact scales and to pronounce distinctly and 
 delinitely his judgment upon them? " I presume '' is not the lan- 
 guage of judicial conclusiveness or exactness. O no. 
 
 Mr. ElJMrXDS. It is a guess. 
 
21 
 
 Mr. CONKLING. A guess, yes a guess— a pardniuiMe form of speech 
 •wheu wc remember the uature aud object of the diseourse. We next, 
 find these words : " In the absence of all legislative provision."' 
 Will any man who stands on the opinion of Chancellor Kent, after 
 hearing these words, deny the i>ower of the Houses to legislate ? Or. 
 to put the e(iuivalent of the inipiiry, will any man pretend in the 
 face of these wt)rds that Chancellor Kent believed that the Consti- 
 tution deposits with the President of the Senate this power ? 
 
 If tlH> Constitution in any way A^ests the power with the President 
 of the Senate, that is the be-all and end-all of the matter: no legis- 
 lative provision could touch it. If the chancellor believed the Consti- 
 tution so provided, nothing could be more absurd than the words " in 
 the absence of all legislative provision ;" surely he knew that no leg- 
 islative provision in such a ease could have any more elfect than the 
 wind. 
 
 But again : 
 
 IpresuiiK^ ill tho .absence of all legislative provision on the subject, that the 
 President of the Senate counts the votes. 
 
 Yes, historically or in the sense of narrative he does; before these 
 words were uttered by the chancellor nearly fifty years ago, histor- 
 ically and in the sense of narrative and in every sense essential to the 
 truth of the statement, he did. So you, Mr. President, do a great 
 many things, as your predecessors have done, by the acquiescence 
 and command of the Houses. You appoint committees, not only of 
 conference, but other committees. A standing rule of the Senate says 
 the Senate shall appoint committees by ballot, does it not ? But yet 
 the President of the Senate appoints committees. How ? He does 
 it by the acquiescence of the body, as the organ of the body under 
 the sanction of the body, just as he formerly signed the certificates 
 to which I have referred. 
 
 In these instances the officer does not act in virtue of any right or 
 power which inheres in him, independent of the Senate and its action 
 conferring it. 
 
 The words of Chancellor Kent clearly indicate that in his opinion 
 the examination of the electoral votes is within the law-making prov- 
 ince. I beg to call attention to the view of the meaning of this pas- 
 sage fi-oin Kent, taken by others who are held in pleasant and respect- 
 ful memory. In 1865 a warm debate over this clause of the Consti- 
 tution occurred in the Senate. These words of Chancellor Kent were 
 read, and Jacob Collamer of Vermont made some observations upon 
 them. He said : 
 
 X obody supposed tliat the Vice-President could exclude them. 
 
 That is, questioned votes — 
 
 But I was about to say that I never heard it doubted before that such a contin- 
 gency, as mij;ht well liappen because of the manner in \Thich the constitutional 
 provision was fi'amed, could be provided for by legislation. Chancellor Kent, in 
 the first volume of his Conimcutarics, .s?.ys. 
 
 And then he quotes. Mr. Collamer resumes. 
 
 He admits that it is in the potverof Congress to legislate, and doubts only whether 
 in the absence of legislation there exists any department of the Government oranj' 
 ofticer of tho Govenimeut vested wirh jiowor to count the votes and declare the re- 
 sult ; and in relation to that he is only able to bring himself to .state by way of opin- 
 ion that be presumes tho President of the Senate is to count the votes and declare 
 the result. But ho pircsnnics that only in the absence of legislation. Legisla- 
 tion on tlie subject, tlierefore, according to tlic high authority of thisdi.stiuguished 
 jurist, is admissible, and of course within tho power of Congress. 
 
 My eye falls here, Mr. President, on words uttered l»y your predeces- 
 sor, Jacob M. Howard of Michigan, then a Senator, whose attaiiiiacnts 
 
22 
 
 as a lawyer were iceogiiiztMl by all who knew biui, who wjis oue of 
 tbe kaders of tbe it'iuiblican party, aud wbo believed, and as you 
 believe and as I believe in tbat party, iu its usefulness aud its mis- 
 sion, and in its record, re8i)lendent as it is beyond any otber in ardu- 
 ous and illustrious achievements. Mr. Howard said : 
 
 1 confL'ss 1 do not doubt the power of Couirrcss, should they see tit, to authorize 
 the President of the Senate to count the votes after he has oi/ened the certilieates; 
 but in tlie absence of such a statutory provision I certainly could not concur iu the 
 " presumption " of Cliancellor Kent, that the President oi the Senate would have 
 the riuht to count the votes and declare the re.«ult. It is impossible for lue to con- 
 cur in this intimation of that very (Hstiniiuislied authority. I should on the con- 
 tniry, hold, in the absence of an iict of Counress, that the duty of countiujj the votes 
 devolved on the two Houses of Con^-ess thus assembled. 
 
 Mr. President, 1 have paused at tbe resolution of 1?;^ and tbe pro- 
 ceedinjj of 1789, at tbe form of certibcate then and long afterward 
 tised, and at tbe remark of Cliancellor Kent, because tliese make up 
 tbe tno of autborities usually cited of late to support tbe tbeory tbat 
 tbe President of tbe Senate is appointed by the Constitution to con- 
 duct tbe electoral count. 
 
 I come now to review the i^ractice of the nation for eighty-three 
 years — from 1793 to 1877. 
 
 Until l8iJ9, beginning iu 1793, as often as electoral votes were to be 
 counted, committees were raised by each Hou.se in advance to ascer- 
 tain and report tbe mode in which the votes should be examined. 
 The committees reported how tbe proceeding should be conducted, the 
 report was adopted by each House, and oue thiug always provided 
 for, was the apj)ointmeut of tellers by each House. 
 
 The right of the Houses thus asserted, was never questioned. No 
 President of the Senate, no member of either House, ever interposed 
 a challenge. When the day to open the certificates arrived, the two 
 Houses directed the juoceeding throughout. The tellers counted. 
 Every question which arose was referred to the Houses. Tbe Houses 
 framed tbe certificate ; they directed it to be signed. He who signed 
 it was the organ and representative of the two Houses. 
 
 January 24. 
 
 Mr. CONKLING. Mr. President, I tried yesterday to answer in part 
 the chief objection to the pending bill. That objection bad theu re- 
 ceived little attention in the Senate. The honorable Senatorfrom Cali- 
 fornia has this morning given it the weight of his authority. Senators 
 have asked why I devoted so much pains yesterday to disproving the 
 authority of the President of the Senate, saying that nobody iu the 
 Senate contends for suib a power, or believes it to exist. Tbe Senator 
 from California is 1 believe itsonly known advocate in the Senate; but 
 nevertheless the chief objection to tbe pending bill prevailing in the 
 press aud in the country at large, is tbe idea tbat tbe Constitution clothes 
 the President of tbe Senate with iiower to do whatever eau be done in 
 deciding on and making etl'ectual electoral votes, aud in judging con- 
 flicting certificates. If this objection be well founded, tbe bill baa 
 no footing. I dwelt yesterday on tbe text of tbe Constitution to show, 
 first, tbat it does authorize tbe President of tbe Senate to receive, keep, 
 and ))roduce and ojicn all tbe certilicates; and tbat the Constitution 
 does not emjxiwt-r liini after they are opi'Ui'd to jta.ss on tbe votes they 
 may contain: second, tbat implication works jiower to do <nily those 
 things incident and es.sential to anexi)re.s,sly authorized act, aud that 
 when tbe expressly authorized act is di>ne and ended, implication stops. 
 
 From this I bad argued tbat as tbe ojiening of sealed certificates 
 
23 
 
 nmst take place before the votes they contained can be examined or 
 touched, and of course before counting can begin, the power to open 
 beforehand, cannot imply the power to do a separate, a diflerent, a 
 greater thing, afterward. 
 
 I referred to the fact that every count from the beginning has been 
 conducted and controlled by the two Houses, that from lirst to last 
 tellers appointed by the Houses have enumerated, and that the Presi- 
 dent of the Senate has never even enumerated the votes; that the 
 certificate reciting the count has been framed and ordered by the two 
 Houses and signed by the President of the Senate as their organ ex- 
 pressly authorized and commanded to sign it ; that the form of the 
 certificate remained ideutical from the beginning, and was used and 
 signed on occasions when we know that the Houses entertained ob- 
 jections to votes, and when the record shows conclusively that the 
 certificate did not and could not imply any power assumed by the 
 President of the Senate of himself to determine anything touching 
 the electoral votes. 
 
 Allusion should have been made to the further fact that in no in- 
 stance has the President of the Senate assumed to judge or to decide 
 anything, or to do anything beyond opening the packets, excejit by 
 the command of the two Houses. Georgia's vote in 1800 having been 
 brought into the Senate this morning as it has been sometimes brought 
 in before, I turn aside to remark that if the name of JetFerson is liable 
 to injury now because of a suspicion that taking up a paper void of 
 form and void of substance as a constitutional certificate, he silently 
 in his seat induced the tellers, notwithstanding its latent and its patent 
 vice,to count it for him ; if, Isay,the memory of Jelterson be exposed to 
 such aspersion, it is exposed to serious aspersion indeed. — He was act- 
 ing as the organ and agent of the two Houses, in their presence, au- 
 thorized by their acquiescence, and the intimation is that he pro- 
 ceeded to do clandestinely something not revealed to them, and some- 
 thing by the clear mandate of the resolutions under which the Houses 
 were proceeding, not within his province, and something the success 
 of which depended on secrecy and concealment fiom the Houses. 
 
 If such a thing were supposable in the case of Jefferson, what a 
 light it casts on the danger of trusting one man in such a matter, and 
 ■what a satire it is on the notion that the Houses can be effectual wit- 
 nesses knowing and verifyingthe truth, and yet leaving the whole mat- 
 ter in the keeping of the presiding officer. 
 
 I alluded yesterday to the fact that always till 1869, committees 
 have been apr»ointed to pre-arrange the process of verifying and as- 
 certaining the result of presidential elections. This practice never 
 ceased till the twenty-second joint standing rule was made in 1865. 
 That rule has gone. The custom of raising committees to ascertain 
 and report the mode of determining the result, has revived. Com- 
 mittees have been appointed, the report of the committees is the 
 pending bill which awaits the action of the Senate, and the question 
 is whether we are to have that method, or no method, or some other 
 method not suggested and which no time remains to devise. 
 
 I now beg the attention of the Senate to a chapter of history. It 
 begins in 1800. The Coustitutiou was then ten years old. The men 
 who devised it were still in the vigor of life, and the nation confided 
 in them, and leaned on them. Many of them sat in Congress, for year's. 
 Among these men was James Madison. He has been called the father 
 of the Constitution ; a few years later he became President of the 
 United States. The Constitution on its face had specified five in- 
 stances in which votes could not make a man President of the United 
 
24 
 
 Stares. Y'wc disabilities vrere imposed upon the presidential ofiBce. 
 One disability was imposed on the office of presidential elector. All 
 this was true when the Constitution was launched in 1789. It has 
 been said in this debate that the ken of man, the forecast of siiges, did 
 not in the beginnin}^ discern the possibility that serious problems 
 might rt'tjuirc solution in the count ami ascertainment of electoral 
 votes. I ventured yesterday to deny the assertion. I repeat the 
 denial now. In 179(5 a presidential election hail been held; electors 
 had Ijeen appointed by the States, Vermont among them. Madison 
 andJeUV'ison, separatedby distance, were in correspon<lence, and Madi- 
 son wrote to .letlerson that the election was still in doubt— tliis was 
 weeks after the electors had been appointed, — because of the allega- 
 tion that there was "vice," (I use his word) in the vote of Vermont. 
 He wrote that if herelectoral votesturned out to bcvalid, theelection 
 woulil be one way, otherwise it Uiight be the other way. What was 
 the vice, or alleged vice, in the vote of N'ermout .' The State of Ver- 
 mont was then living under a consiiiution wanting in provision for 
 the choice of electors, no statute had been passed directing the mode 
 in which electors should be ajipointed, and the Constitution uf the 
 United States ordained that they should be appointed by the States 
 in the mode directed by their Legislatures. The Legislature of Ver- 
 mont, in the absence of a statute, proceeded itself to api)oint electors. 
 That was the customary mode observed then in other States, except 
 in those in which the governor alone ajipohited. Argument arose. 
 On the one side it was said ''the Legislature of Vermont has not di- 
 rected the mode in which presidential electors shall be appointed; 
 there is no statute ; and the Legislature can speak only by statute."' 
 On the other hand it was said '•Xvhen the Legislature proceeds itself 
 to choose electors, aoes it not direct the process? Does it not say, by 
 action speaking louder than words, how the electors shall be chosen." 
 And it was of tliai doubt, and of the "vice" it suggested, that James 
 Madison, ou the 2^)Xli of December 179d wrote to Thomas Jetierson 
 these wor«ls : 
 
 I oaiiuol t-ntiri'ly n'luove tho uncertainty in wliich my last left the eloction. Un- 
 less the Verr\(jiit elect ii)u. of whiih littK> has of late been f\U\, should contiiinsonie 
 fatal vice in it, Mr. Adams may be considered as the Pres..dent-elect. 
 
 Two weeks afterward, on the 8th of January, 1797, ho wrote : 
 
 If the Vermont votes be valid, as is now -ienerally supposed, Mr. Adaius will have 
 "1 and you (W, Pinckuey being in tho rear of both. 
 
 Mr. President, these letters were written very soini after the Con- 
 stitution lirst s])oke ; they are not the letters of one who was startled 
 and amazed that such a (piestiou should arise, and w^ho knew of no 
 way in which it eotild be .solved — the whole manner indicates nuite 
 the opposite. Other facts might be cited — the receipt in Congress of 
 petitions from New England charging wrong in the appointment of 
 electors, and not alone such jietitions, to show that, iunuedialely after 
 the adoption of the Constitution, and, as 1 insist by rea.sou of wh.at 
 appears even on its face, before its adopt ion, its authors foresaw that 
 questions might ari.se reiiuiring the power of tleciding and judging 
 the result of presidential elections. 
 
 Coming to the year IfcOO, I hold uj) the plain evidence that of both 
 Houses of Cougre.ss, and the Uiaders of thought in the country, had 
 their attention siiarply lixed on the neccsj^ity of providing for the ad- 
 judication of some at leastof the very ipiestions involved in the count 
 of voles which now awaits us. 
 
 On the 2:1(1 of January, l-tiO, Mr. Koss in the Semite moved a com- 
 mittee to '•inquiie whether any and what provision should be made 
 
25 
 
 touching disputed elections " — I quote the language — "disi^uted eleC' 
 tious of President and Vice-President of the United States." It was 
 the 14th of February before report was made. It was the 2bth of 
 March before the bill reported was hually acted upon; and the inter- 
 val is dotted on the skeleton record which has conic down to us with 
 the days and occasions on which the Senate, and afterward the House, 
 bestowed upon it most earnest consideration. In the House the bill 
 was managed and the debate was led by John Marshall, who had 
 already given evidence of those remarkable and rugged powers, and 
 of that thorough knowledge of the elements of the Constitution, 
 which were so soon to select him as the head of the new nation's 
 highest court. A year later he became Chief-Justice, and at once he 
 began to till all lands with his renown as a jurist and a statesman. 
 It is said that at the age of tweniy-seven Edward Coke was the great- 
 est common lawyer in the world. As truly has it been said that John 
 Marshall was as great a master of our Constitution as ever lived. I 
 have words of his to read to the Senate. The bill, which I will 
 presently refer to more at large, had passed the Senate; it was jiend- 
 iug in the House in Committee of the Whole. Its title was "A bill 
 prescrilung the mode of deciding disputed elections for President and 
 Vice-President." Here is the record: 
 
 The bill having been read, aiul the first section being imder consideration, 
 Mr. Marshall, after speaking of the importance of the s.ubject before the com- 
 mittee — 
 
 The Committee of the Whole House — 
 and the necessity — 
 
 I beg Senators to observe this — 
 and the necessity of some salutarj- mode being adopted for this object — 
 
 That is to settle disputed elections of President and Vice-President — 
 
 expressed his doubts of the propriety of two points in this first section of the 
 bill, to-wit : first, that the Senate were to name the chairman of the grand commit- 
 tee, and seconilly that the opinion of this grand committee was to bo final. He 
 therefore moved to .strike out of the section so much as related to those principles, 
 and read what he wi.shed to introduce for a sub.stitute. 
 
 Here is an explicit statement both of the power of Congress to legis- 
 late, and of the "necessity" of adopting a "salutary mode" of conduct- 
 ing the count, and deciding disputes. I will presently show what Mar- 
 shall deemed a " salutary mode." Before doing so however, I wish to 
 advert to a statement made yesterday by the Senator from Ohio [^Ir. 
 Shermax.] He said Mr. Pinckney, Charles Piuckney, then a Senator, 
 answered the arguments made in'favor of the now pending bill. Did 
 the Senator mean to lead the Senate to believe that Charles Pinck- 
 ney or any other man who took part in the debate of IriOO, intimated 
 that an ounce of power, a feather's weight of authority, a particle of 
 prerogative resided with the President of the Senate to judge an 
 electoral vote or to determine the result of a presidential election ? 
 
 Here is the argument of Charles Piuckney. I infer that, after the 
 manner of later times, it was a verbal ly-prei)ared argument ; it would 
 so seem, because in this book and its fellow-volumes, " the Annals of 
 Congress," it appears as one of the rare instances in which, in cximso, 
 any man is reported, and short-hand writers did not exist then. I 
 think I have a right to suppose that Mr. I'inckney was reported by 
 himself. I will read a few of his words ; the honorable Senator from 
 California also made allusion to Mr. Pinckney. 
 
 It is made their duty — 
 
 That is the duty of the two Houses — 
 
 It is made their duty to count over the votes in a convention of both Houses, and 
 
26 
 
 for thi- President of the Senate to declare who haa the m^iority of the votes of elect 
 ors transuiitted. 
 
 Again : 
 
 From this part of the Constitution it is evident that no power or authority is 
 pvpii tu Coujri'ess, oven when both Houses are assembled in convention, further 
 than to open and to count the votes, and declare who are President and Vice-Preai- 
 dcnt, if an election has been made ; but if no election has been made, 6cc. 
 
 I do not read these passages as contriliutions to the argument that 
 more or less power resides in the two Houses. I read it merely to 
 show how far it was from the purpose of Mr. PincJiuey to assert any 
 prerogative for the President of the Senate. His argument was quit« 
 different. The argument was that the electors were to be appointed 
 by the .Slates, that this was the function and attribute of the States, 
 and that nothing was to be done by the two Hou.ses, or by anybody, 
 excej)! to ascertain what the States had done. And I beg just here, to 
 Bay that I do not believe any Senator who concurred in reporting the 
 bill now before the Senate holds any other doctrine. 
 
 To ascertain the act of the States, is the whole object of the bill. 
 The sole iucjuiries authorized by the bill are, clid the State ai)point 
 electors, who are they, how did they vote. These inquiries answered, 
 the proceeding is ended, whether the State be New York or Louisiana. 
 There is tlie mete and bound which no power can lawfully overp;tss. 
 Whoever treads bjiyond, will trample on the Constitution, and at- 
 tempt to establish brute force or partisan fraud on the ruins of law. 
 
 Charles Pinckney said it was for the States to appoint electors ; the 
 electors were to speak, and then, with a coulideuce which a longer life 
 ■would have shaken, he added, Who can suppose that any State will 
 ever attempt to make an office-holder an elector, or will ever do any 
 other thing which the Constitution forbids f If I were. to say that 
 he argued that the whole subject must be left literally to the States, 
 I should overstate him. His argument was that it had better be so 
 left, that it was not worth while to be pragmatic, nor to anticipate 
 difficulties or problems, but rather to trust to the placid promise of a 
 hopeful by and by ; better to trust that all the States, observing the 
 Constitution, would speak and act according to it. He said that no 
 irregularity had then occurred, and that he believed no dispute about 
 the election would ever come to vex the ear of Congress, or of the 
 nation. 
 
 He said also that Congress had nothing to do with electing a Presi- 
 dent in the lirst instance, but he <lul not say that Congress had noth- 
 ing to do with linding out who the people in the States had elected, 
 
 No, sir, he said not liing of the sort, nor did ho intimate that what- 
 ever was to be done in ascertaining the result of presidential elec- 
 tions, should or could be done by the President of the Senate, or by 
 anybody except Congress. 
 
 At the end of the argument of Mr. Pinckney the Senate passed the 
 bill. Here it is. As reported bj'the committee in the Senate it pro- 
 vided that of the connnittee, the '' grand committee," as it was called, 
 to be created, the Chief-Justice should be chairman. The honorable 
 Seuiitor from Ohio [Mr. Siii!:k.m.\n] was right yesterday in saying that 
 the Chief-.Justice was stricken out. 1 ask the attention of the Sena- 
 tor from California (Mr. SaiegkntJ to the amendment by which the 
 Chief-Justice was dispensed with. In lieu of the provision that the 
 Chiet-Ju.stice slnmld be chairman of the grand committee, was in- 
 serted this provision : 
 
 It shall be the duty of the Senate and House of Representatives of the United 
 States to draw bv lot* in each House six members thereof. 
 
27 
 
 I can state more briefly than I can read the residue of the amend- 
 ment. By lot six members were to be drawn. Three were to be se- 
 lected from the sis, and of these three a chairman of the committee 
 was to be found. Tliere are several otlier provisions to which I ask 
 attention. The title of the bill I have already indicated. Section 
 first provided for the constitution of a committee to be known as a 
 grand committee, and I ask Senators to observe the power given to it : 
 
 And shall have power to examine and finallt/ to deJv'.de all d'spittesrelaUve to Ihc elec- 
 tion of President and Vice-President of the Uni'ed i>/j4es : Provided always, ILat uo 
 person shall be deemed cajiable of serving on this committee, who is one of the five 
 highest candidates, or of kin to any of the five highest candidates. 
 
 Section 3 : 
 
 Each Honse shall tlu^n proceed to choose, by ballot, two members thereof as tell- 
 ers, whose duty it shall bo to receive ihe certificates of the electors //-on, the Presi- 
 dent of the Senate, after they shall have been opened and read. 
 
 Each member of the committee was to take and subscribe an oath, 
 and to that oath I also call attention. The oath was — 
 
 I will impartially examine the votes given by the electors of President and Vice- 
 President of the United States, together with all the exceptions and petitions against 
 them, and a true judgment give thereon according to the evidence. 
 
 Section 4 provides : 
 
 The President of the Senate shall then deliver to the chairman of the grand com- 
 mittee all the certificates of the electors, and all the certificates or other doeuinents 
 transmitted by them, or by the executive authority of any State, and all the petitions, 
 exceptions, and memorials against the votes of the electors, or the persons for whom they 
 have voted, together with the testimony accompanying the same. 
 
 The Senator from Ohio observed, erroneously, yesterday, that the 
 pending bill provides for a secret session of the commission. Not so. 
 This bill of 1800 made that provision. I will read it : 
 
 They shall sit with closed doors, and a majority of the members may proceed to act, 
 provided the number from each House is equal. 
 
 But for an unwillingness to consume the time of the Senate I would 
 stop to remind the Senator from California how our fathers thought 
 that impartiality might be gained by counterpoising against each 
 other opposing predilections. One House at that time was largely 
 federal; the other was largely republican; divided somewhat as the 
 Houses are divided now, and this scheme provided that the commit- 
 tee to be composed of both Houses should act only when each House 
 was represented with exact equality. Section 6 provided : 
 
 That the grand committee shall have power to send for persons, papers and rec- 
 ords, to compel the attendance of witnesses, to administer oaths to all persons examined 
 before them, and to punish contempts of witnesses refusing to answer. 
 
 Section 8 : 
 
 That the grand committee shall have power to inquire, examine, decide and re- 
 port, upon the constitu'ional qua'<fications of the persons voted for as President and 
 Vice-President of the United States ,• xtpon the constitutional qualifications of the 
 electors appointed by the different States, and whether their appoiuttnent was author- 
 ized by the State Legislature or not ; upon a:l petitions and exceptions again.it corrupt, 
 iUegai conduct of the electors, or force, menq,ces or improper means used to influence 
 their votes ; or against the truth of their returns, or the time, place or manner of giving 
 their votes. 
 
 Section 10 : the report of a majority of the said committee shall be a final and con- 
 clusive determination of the admissiliility, or inadmissibility of the votes given by the 
 electors for President and Vice-President of the United States : and where votes are re- 
 jected by the grand committee, their reasonsshall be stated in writing for such exclusion. 
 
 This bill being amended in several particulars, but in no particular 
 changing the provisions which I have I'ccited, save only to exchange 
 the Chief- Just ice as chauman for a chairman to be obtained by lot, 
 passed the Senate by a decided majority. 
 
 Mr. SAEGENT. By a majority of 4. 
 
28 
 
 Mr. CONKLINC;. Sixteen to twelve. Sixteen to twelve was fi de- 
 ci(le<l majority in a body so small. It passed the Senate after a vigor- 
 ous and pertinacions opposition never for one moment grounded upon 
 the idea, never in any instance .suggesting the idea, that the juiwer 
 whatever it might be, toascertain jiresidential elections, did not reside 
 in the two Houses, or that any power touching the subject did reside 
 in till' President of the Senate, beyond opening the certificates. 
 
 Ir is to be ol>served that receiving, keeping and opening such docu- 
 ments, is not a duty of that paltry or menial nature described by the 
 Senator from California when he spoke of "a common carrier of 
 pa])ers." It is a duty of honor and solemnity. It is to receive in trust, 
 and in high trust, the secret cert iticates of what has been done by bodies 
 of men in great matters, and to pi> ^erve them inviolate until in the 
 presence of the rcprescnratives of States and the representatives of 
 the peo]>le, and invtstcd with more tlian the interest heii-s feel when, 
 in homely i)hrase. a will is oiicncd, for tlie first time the whole nation 
 and the world may Icnow what has been consunnuated by the average 
 and aggregated judgment of all the States. This is no undignilied af- 
 fair — it is not beneath a .sovereign. Be this function great or petty, 
 never was it hinted in the debate of lr-00 that any power inhered in 
 the presiding officer to judge of anything. 
 
 Now I call attention to an amendment offered in the Senate l)y 
 Mr. Nicholas. If distinguished for no other reason, this umeniUnent 
 ■will l)e lieard witli respect Ijecause it commanded not only the jn-ef- 
 erence but the approbation of Thouias Jetierson. Those who have 
 read his letters written at the time will remember that he says, every- 
 tliing offered by a republican is voted down by the customary major- 
 ity oi two to one; but he says in a few days an amendment will be 
 offered which will express the republican view. Here is that amend- 
 ment. I am not going to read tlie whole of it. Its chief feature, and 
 that which coimuauded the approval of Mr. .leflVrson, was tlnit when 
 objection was made to a vote, that olijection was to be passed upon 
 by the two Houses sitting in joint meeting and voting en hkivst and 
 per capita, Senator by Senator and Member by Member. That was the 
 theory Mr. Jefferson held. It found expression in this amendment, 
 and the preamble of the amendment is interesting for other rea ous. 
 I ask the Secretary to read it. 
 
 The Secretary read as follows: 
 
 ArDL-mlments to tlio bill pioscribiiiK the mode of deciding dipnted elections of 
 President and Vice-Presiilent of the Uuited" States. 
 
 Strike owt the ten liist sections, .iiul insert : 
 
 Whereas, in an eleetiiin of President and Vice-President of the United States, 
 questions may arise, wlietlier an elector has been apjiointed in a mode authorized 
 by the Legislature of his State or not ! Whether the time at which he wa.s chosen, 
 aiid tlie day on which h(! ji.:i\v his vote were tliose deterniiued by Congress 1 
 Whether he were not at the time, a .Senatoi !«• Uei)resentative of the Cuited States, 
 or held an olhee of trust or ]iii)lit uniler the Pnited States ? Whether one at least, 
 of the peisims he has vcited for, is an inhabitant of a State other than his own ? 
 Whither the electors voted by ballot, ainl have si^rned, certilied and transniilttd to 
 tlie Pri'sident of the S.-nate, a li.>t of all the iiersous voted for : and the number of 
 votes for each .' Whether the persons voted for are natural-born citizens, or were 
 citizens of the, Uniteil States, at the time of the adoption of the Constitution, 
 were thirty-live vears (dd, aiul had been fourteen years resident within the I'nited 
 States? And the Constitution of United States bavin;; directed that the Presi- 
 dent of the Si'iiMti' shall— 
 
 Mr. CONKLlNt;. Now I beg i'le Senate to listen to the words 
 about to be read. 
 
 The Secretary continued to read, as follows : 
 
 Haviny directed that the Prexidento/the Senate shall, in thepresetice of the Senate and 
 nouxr of Representatives, open allth'c certificates, and that the votes shall then be count- 
 
29 
 
 eel, froimohich the reasonable inference and practice has been, tliat the)/ are to be counted 
 by the inembcrs compodnfi the said Houses and broupht there for that office, no othir 
 beinij assigned them ; and inferred the more reasonably as thereby the constitutional 
 weitjht of each State in the election of those high officers, is exactly preserved in th'' tri- 
 bunal which is to fudge of its validity, the number of Senators and Representatives 
 from each State, composing the said tribunal, being exactly that of the electors of the 
 same State. 
 
 Section 1. Be it enacted, (f:c.. That whensopver tho mcnil)i>rs of tlio Scnato and 
 House of Ilpprest'iitativt's shall bo asseiubkMl for tho jiurposo of having; tho certifi- 
 cates of tho oleotors of tho several States onenod and comitod, tho names of the 
 several States shall bo written on ditforont and siiuilar tickets of paper, and put 
 into a ballot-box out of which one shall bo drawn one at a time — 
 
 jNIr. CONKLING. That is euougli. I do uot wish to shock the teu- 
 der sensibilities of the Senate by making thorn hear that their fathers 
 proi)Osed to toss a penny or draw anything ont of a ballot-box. 
 They did, however, provide that the President of the Senate should 
 not even determine for himself the order in which lie would pick np 
 and break the seals of these packets. They provided that putting in a 
 box a paper each containing the uameof a State, a member of one House 
 should shake the box and a member of the other House should draw 
 out a paper; and then the President of the Senate should open the 
 certihcate indicated by the lot, and no other, and that until every 
 exception taken to the votes of that State was adjudged and acted 
 upon, no other certificate should be opened. But all this involved 
 the doctrine of chance^and in the gladsome light of these better days 
 who would be a dark id(dator of chance. no : not we : uot we, who 
 are endowed with scruples and virtues which our fathers never knew. 
 
 This amendment offered in the Senate failed. It failed not because 
 of its preamble but because of the latter part of its substance, which 
 I will read : 
 
 The packet containino; tho certificates of that State, vShall be opened by the 
 President of tho Son;\te, and shall then be read, and then shall he read also the 
 petitions, depositions and other papers and documents concerning; the same, and if 
 no exception is taken thereto, the votes contained in such certificate shall be counted, 
 but if the votes or any of them shall be objected to, — 
 
 Now comes the not acceptable provision — 
 
 the members present shall, on the question propounded by the President of the 
 Senate, decide, without debate, by yea or nay, whether such votes or vote are consti- 
 tutional or not, and the votes of one State being thus counted, another ticket shall 
 be drawn from the ballot-box. 
 
 It will be perceived these latter words required a call of the roll in 
 the joint meeting in which every Senator as a unit, and every member 
 as a unit, should respond yea or nay. Naturally enough the States 
 would not surrender their preponderance of power in the Senate, and 
 would not consent to having Senators merged with tho more numer- 
 ous House of Representatives; and therefore the Senate rejected this 
 amendment; I repeat, the blunt recital in the preamble, that the 
 power was with the Houses and none of it with the presiding officer, 
 received no criticism in either House. 
 
 In the House the bill was reported with amendments not one of 
 which bears upon the topic w^i are now considering. The two Houses 
 differed, and the bill was rent on a rock. One House was republicau 
 in its majority', and the other was federal. It was said iu one House 
 that if either House decided against the count of an electoral vote 
 it should be cast out ; in the other House it was insisted that uo 
 vote should be cast out unless both Houses so said; and accordingly 
 on the word "admit " or the word " reject " the Houses differed. They 
 first insisted; they then adhered, in parliamentary parlance; and the 
 bill fell, because a political i^arty in the Senate would uot yield into 
 
30 
 
 the liands of a political party in the Honse, the jus dlsponendi of an 
 electoral vote; but all lueu, anil both jtartit-s, audboth Houses, concur- 
 red in afiirming by words and by votes that it was for the two Houses 
 of Congress as such, or fur the law-making power to conduct, and. 
 conclude the ascertainment of electoral votes. 
 
 No one disputed this position. 
 
 Mr. President, begging pardon for occupying so much time iii)on 
 the bill of IHUU which contained nearly every essential element, cer- 
 tainly every one to which most serious objection is made, to be found 
 in tlu' bill before us, I beg to ask attention to the legislation of 1S24. 
 
 Objection had been made to the count of the vote of Indiana in 
 1817. ifissouri had put into her constitution, touching free men of 
 color, provisions obnoxious to a large portion of the nation, and ob- 
 jection had been made to the count of her vote. In l-;"24 in the Senate 
 came forward Martin Van Uuren, the organ of the Conuuitteeon the 
 Judiciary of the Senate. He came forward in response to a resolu- 
 tion passed on the Kith of December, 1^23, a resolution which sum- 
 moned that connnittee to ascertain and i"eport what, in regard to the 
 count of electoral votes, the public interest and the puVdic .safety re- 
 quired. On the 4th of March he reported the bill which I hold in my 
 hand. Not until the lt)th of April and after nmch debate and con- 
 sideration did it pass the Senate. It went to the Honse and was re- 
 ferred to the Judiciary Committee on the "Jlst of April, 1824. It was 
 reported back in the House from the Judiciary Committee, unani- 
 mously as far as the record shows. Who reported it ? Who was the 
 organ of the Law Committee in the House when this liill was reported f 
 Daniel Webster, of Massachusetts. He reported it without changing 
 the dot of an i or the cross of a t. No amendment or cavil was sug- 
 gested. It had passed this body. It had been managed here by Mr. 
 Van IJureii who soon afterward led his jiarty in the national canvass, 
 and .stood the acknowledged and visible head of the democratic 
 church; and Mr. Van Bureu was a lawyer of no meati attainments. It 
 Avas rei)orted in the House with ai)))roval by Mr. Webster, who was 
 known as the great expounder of the Constitution, but it was not 
 reported until the 10th of May, 1824. It was then referred to the Com- 
 mittee of the Whole, and when the 10th of May has arrived in this 
 latitude, the Ht)use of Representatives and the Senate have ap- 
 proached the term of the session. The Houses a<ljourned. and thus 
 the bill was lost. I turn to two of its provisions. It provides, curi- 
 ously enough, that on the tirst occasion when tlu' votes were to be 
 counted the joint ujeetiug should be held in the Hall of the House, 
 and on after occasions the two Houses -should assemble in the Kotnnda. 
 
 The Senate and Ilouse of Representatives shall meet in the Hall of the Ilouse of 
 Represi-ntatives at the next oeca.sion, .mil on all future occasions in the center 
 room of the Capitol. 
 
 That I take it be tlie Rotunda. They were to meet under the Dome 
 of the Capitol on neutral ground between the two Halls. 
 
 The bill provides that at twelve o'clock of the day appointed for 
 the counting of the votes, the two Houses shall meet as I ha ve described. 
 
 The packet containing the certificates from the i-lectors of each Sti\to shall then 
 be openi'il hy the I'lesiih-nl of tlie Sonate, iK-jxinnin;; with the State of Now Uamp- 
 shire — 
 
 And going through the States geographically — 
 
 audi/ no i^xcepHonn are taken thereto, all the vote.s eoiitaineil in such certiflcate-s shall 
 he countt'il: 'jiit, if any esccpHon !><■ taken, the ptrMin taking the name nhallgtate it in 
 >rritiii(i, itirrcthi. and not argumentatively. ami sijjn his name thereto; ami if the 
 exception bo secouiled, «fcc. 
 
31 
 
 I pass over that: 
 
 And then each House shall immeilif.tly rehire, without question or debate, to its 
 own (leiiartment, and shall take the (luestiou on the exciption, wiihout debate, by 
 ayen and noes. So soon as the question stall bo taken in either Ilouse, a message 
 shall be sent to the other informing them — 
 
 Of what? 
 
 informing them of the decision of the question and that the House sending the vtessage 
 is prepared to resume the count. 
 
 Not to resume witnessing a count to be concluctod by somebody else, 
 but to resume the count, 
 
 and when such message shall have been received by both Houses, they, shall again 
 meet in the same room as before, and the count shall be resumed. And if the two 
 Houses have concurred in rejecting the vole or votes objected to, such vote or votes 
 shall not he counted ; bxU unlessboth Houses concur, such vote or votes shallbe counted. 
 
 Tliat, Mr. President, w'as the bill nf 1824. Be it wise or unwise, it 
 asserts again by a unity of voices with no recorded doubt, that the 
 paramount law had reposed in the two Houses the duty, and com- 
 manded them to see to it, that constitutionally, hiwfuUy, and truly, 
 the result of presidential elections should be ascertained. 
 
 I have said that in 1817 the vote of Indiana was cballenged. Her 
 Senators sat in the Senate Chamber. In the House also she was rep- 
 resented. The question was shall this vote be counted ? The Houses 
 separated, entertained the objection, and deliberated. 
 
 In 1821 Missouri had come in. Before the day to count arrived on 
 a motion made in either House a committee was apjwinted to consider 
 and forecast the disposition to be made of an anticipated objection. 
 
 Just here it may be well to notice a suggestion we have sometimes 
 heard. It is said that it is impracticable for the two Houses to attempt 
 to decide objections to votes when the count takes place ; becatise if 
 they have the legal power they have not the time to make the inquiry. 
 
 Why is there not time ? Why, because the second Wednesday iu 
 February is the day for the count to begin, and the interval before 
 the 4th of March is too brief to permit inquiry. The first answer to 
 this suggestion is that the day is fixed only by statute, and can be 
 changed to a day early enough to leave ample time. The pending 
 bill does change the day, so as to avoid insufficiency of opportunity. 
 But the other answer is suggested by the case of Missouri and by other 
 instances in which disijute has arisen. The fact is always known iu 
 advance, as in the jiresent instance it has been known, that objections 
 of particular kinds will arise in regard to particular States, and this 
 enables each House to inquire seasonably, as each House has done 
 now, into the grounds of the anticipated objection. 
 
 It was in this way that Mr. Clay was enabled to move a committee 
 in 1821 in the House, and to come 'to a resolution with a Senate com- 
 mittee prescribing in advance exactly what should be done with the 
 vote of Missouri. The order of the Houses, thus made beforehand, 
 was that the vote should be reported thus : if the votes be counted, 
 the count will stand so and so, if not counted, so and so, but in either 
 case James Monroe has received a majority of all the electors ap- 
 pointed, and is therefore President of the United States. 
 
 In effect the votes were rejected. 
 
 No suggestion was made that the presiding officer had any power 
 over the question. I measure mj- expression iu saying no power, be- 
 cause he was Vice-Presidoiit, and not even a member of this l)ody, and 
 had not even a vote, exceirt in the case of a tie. If ho had been as you 
 are, Mr. President, a member of the Senate, he would have had a vote. 
 You have a vote not qua your Presidency of the Senate, but qua your 
 
32 
 
 Seiiatorsliip. It is because yon hold the credentials of the great State 
 of Michigan as a Senator, and not becanse I had the i)leasnre of vot- 
 ing for yon along with a majority of Senators to preside over us. that 
 you have a vote and thereby one-seventy-lifth of the power of the 
 Senate. 
 
 In 1837 the vote of Michigan was dealt with by the Houses, as Mis- 
 souri had been thirteen years before. 
 
 In ldo7 the ctrtilicate of Wisconsin was opened. A snow-storm had 
 raged in Wisconsin. The electore wore impeded in reaching Madison, 
 the capital of that State. Tliey arrived at Madison a day too late. 
 The law said they must vote the day before. The question was, is 
 the law in this respect mandatory or is it merely directory? James 
 M. Mason of Virginia sat in yi>ur chair. 'J'lie Houses met, to count 
 the vote. Wisconsin's certificate was reached. Oljjection was made. 
 The presiding ollicer said " this is not the time." The tellers wrote 
 upon their table. The objection was insisted on. Mr. Mason said — 
 I state it briefly, not wishing to dwell upon in, but I mean to state it 
 accurately, and I invite review and correction if I am wrong — the 
 President of the Senate said, '' no ))roceeding is in order here, the two 
 Hou.ses sitting togi^ther, which refjuires debate or a vote here. That, I 
 rule as the presiding officer of these two bodies," as he was by the by, 
 not becanse he was President of tlie Senate. Xo, Sir John Kandolph 
 early raised his voice against that idea ; but because of the comity 
 and agreement of the two Houses he was selected for that occasion to 
 act as the moderator or i)residing officer of the joint meeting. Mr. 
 Mason ruled that nothing was in order there which involved debate 
 or a vote in the two Houses sitting together. One of the tellers, Mr. 
 Jones, of Tennessee, rose, as the record will show, and said I take it 
 the true mode is for the Houses to sepai-ate and determine se])arately 
 whether this vote shall be counted or not. Mr. Mason rose, I use his 
 ■words now, and said, " the Chair so considers." During the proceeding, 
 in every form of convenient words, he disclaimed all power. He said in 
 substance I have no power to count this vote or to refuse to count it. 
 I have no power to say it is a good vote or a bad vote. My business 
 is to open the certificates. I do it. The two Houses must decide 
 whether the vote is constitutional and can be coiuited or not. Stephen 
 A. Douglas of Illinois then a Senator, broke into a somewhat vio- 
 lent, I prefer to say impassioned exclamation, and yet scarcely more 
 impassioned than that in which John J. Crittenden expressed himself, 
 and it may be said of him that the snows of seventy winters on his 
 head never (luenched the fires of patriotism that glowed l)eneath. He 
 and Douglas and others rose and said, '"I proti'st; I record my pro- 
 test against the idea tiiat the presiding officer has anything to do, even 
 by ruling a ([uestion of order, with ])Utting a curl) or bit upon pro- 
 ceedings here." The President of the Senate again disclaimed all in- 
 tention to inlluence the proceedings. On the motion of a Senator the 
 Houses separated. The Senate came here and debate took i)lace, and 
 again th<; ])residing officer washed his hands and purged hiujself of 
 what he said would have been an attemjit at usurj)ation, saying that 
 he had nnthing to do witli the mattei- except to open the certificates, 
 and then as aulhori/.ed by the two Houses to act as the presiding 
 officer of the joint meeting; but the Houses, and they alone, mustde- 
 ternnne whether a vote was good, or whether it was bad, or he might 
 have added whether it was inditf'erent ; an impiiry which would have 
 been quite immaterial if the law had been, .19 announced here the other 
 day, that no matter whether good, bad, or indifierent, in either alter- 
 native equally, votes are to be counted. 
 
33 
 
 I come now to a resolution adopted hy the two Houses in 1865, after 
 much debate in the Senate. Kebellion stood with gory and uplifted 
 hand. I will admit for the sake of the argument, or rather I shall 
 not read the resolution to dispute, that acts might bo proper in the 
 I)resouce of such events, which in their absence would have been with- 
 out justification, ])ossibly without extenuation. 
 
 M'r. HOWE. The Senator admits it ? 
 
 Mv. CONKLING. 1 admit it for the sake of the argument. I affirm 
 nothiu"- in regard to it. I never believed the Constitution was vio- 
 lated by asserting that the Government had the right to be. I never 
 believed it was violated because it was asserted that the nation had 
 authority by the beak and claw to put down rebellion. Here is the 
 resolution : 
 
 Be it resolved bii the Senate and House of Representatives of the United States of 
 America in Congress assembled, That tlie States mentioned in the preamble to this 
 joint resolution are not entitled to representation in the electoral college for the 
 choice of President and A'icoPresident of the United States for the term of office 
 commencing on the 4th day of March, 1865 — 
 
 Now — 
 and no electoral votes shall be received or counted from said States concerning 
 the choice of President and Vice-President for said term of office. 
 
 Approved February 8, 18G5. 
 
 That resolution went to Mr. Lincoln, the President of the United 
 
 States. Hear what Mr. Lincoln said : 
 
 The joint resolution entitled, &c., has been signed by the Execative — 
 
 I am reading the language of Abraham Lincoln — 
 
 has been signed by the Executive, in deference to the view of Congress implied 
 in its passage and presentation to him. In his own view, however, the two Houses of 
 Congress convened under the twelfth article of the Constitution — 
 
 Not the twenty -second joint rule, — that rule did not then exist — 
 
 have complete power to exclude from counting all electoral votes deemed by them to be 
 illegal ; and it is not competent for the Executive to defeat or obstr-uct that power 
 by a veto, as would be the case if his action were at all essential in the matter. He 
 disclaims all right of the Executive to interfere in any way in the matter of can- 
 vassing or counting the electoral votes, and he also disclaims that by signing said 
 resolution he has expressed any opinion on the recitals of the preamble, or any 
 iuagment of his own upon the subject of the resolution. 
 
 ABRAHAM LINCOLN. 
 ExECurrvE Mansion. February 8, 1865. 
 
 I think it safe to stand with Abraham Lincoln in the view he stated. 
 
 This brings me to the twenty-second joint rule. The Senator from 
 Ohio [Mr. Sherman] said yesterday it was adopted on the report of 
 the Judiciary Committee. No, sir. In 1865 the House and the Sen- 
 ate iiassed, as the Senate and the House have passed this year, reso 
 lutions raising committees to ascertain and report, in the immemorial 
 language, the mode in which the electoral votes shall be examined, 
 and the result ascertained. Who, Mr. President, was of that com- 
 mittee in the House ? The Senator from Ohio will remember them 
 "well when they are named. The chairman of the committee was 
 Thaddeus Stevens, of Pennsylvania. Next on the committee was Mr. 
 E. B. Washburne, of Illinois. Next to him was Mr. Mallory, of Ken- 
 tucky. Then came Davis, — Henry Winter Davis, of Maryland; and 
 last upon the committee was Mr. Cox. Three of these gentlemen were 
 very pronounced republicans. In the Senate, the committee was spe- 
 cial also, consisting of Mr. Trumbull, of Illinois, Mr. Conness, of Cali- 
 fornia, and Mr. Wright, of Indiana. These two committees reported, 
 and reported unanimously, the twenty-second joint rule. Mr. Stevens 
 reported it in the House, and demanded the previous question upon 
 
 2 CO 
 
34 
 
 it, to which nobody objected ; I state this to show that no debate took 
 phxce, and accordinj? to my recollection, no republican, not one, re- 
 corded himself against it. I believe no republican Senator voted, 
 against it. In the Senate the whole subject had just been elal)orately 
 debated for days on another resolution, and was well understood. 
 Do not suppose, Mr. President, that I allude to the twenty-second 
 joint rule to ajtprove it. The rule is gone, and this is well; but the 
 argument remains. The argument, like Bantpio's ghost, will not 
 down. If, by the Constitution, this province resides with the Presi- 
 dent of the Senate, the twenty-second joint rule, or any rule of the 
 sort, and every proceeding of the Houses by which they judged of 
 votes, has been a usurpation from the beginning as bald and wrong 
 as unauthorized interference could be. 
 
 Under the twenty-second joint rule Senators around mo heard the 
 certifi(;ite of Arkansas read. Objection was made. Why? Bocause 
 the seal impressed upon it was the governor's seal as contradistin- 
 guished from the great seal of the State; and the two Houses .sepa- 
 rated and in solemn action each Hou.se cast out the vote of Arkansa.s 
 altogether, because of a supposed mistake in the seal. 
 
 Four votes fi'om Georgia were cast out by one House alone. Why? 
 Because, though regular in all respects, no llaw appearing on the face 
 of the certiticate, they were given for Horace Greeley, andilr. Greeley 
 Avas dead according to report. 
 
 Yes, Mr. President, these votes and others, were cast out when the 
 result did not dejiend on them we are told. But is this a migratory 
 power ? Does it live in the two Houses of Congress when nothing de- 
 pends upon a vote ; and when everything depends upon a vote, does 
 the j)ower to judge that vote migrate and pass out of the two Houses 
 and pass into the presiding oflicer ? 
 
 I come now to another resolution. The Senator from Ohio [Mr. 
 SiiEKMAX] may remember it — a resolution offered by him in .Tanu- 
 uary, 1^7^. War had ceased. The clash of arms could no longer be 
 heard. The Supreme Court had decided that eight years before the 
 resolution was offered, in every intent of law and fact, the war w;is 
 over. Peace stood in the land; pence stood adjudged on the recor^. 
 A i)residential election had occurred, and on the 7tli of January after- 
 ward the Senator from Ohio iirojiosed to the Senate this resolution : 
 
 Ki^soh-ed, That tho Committee on Privilesos and Elections 18 directed to iiiquiro 
 and ri-port to the Senate whether the recent election of electors for President and 
 Vice-President has been conducted, in the States of Lonisiana and Arkausiis, in 
 accordance with the Constitution and laws of the United States, and tho laws of 
 said States, and what contests, if any, have arisen .is to who were eh^cted as electors 
 in either of said States, and what measures are necessary to provide ftu- the deter- 
 mination of such contests, and to jruard against and determine like contest.sintho 
 future election of electors for President aiul Vice-President. 
 
 The resolution further ])rovided in order that the an.swer to it may 
 be speedy, that is to .say that the iul'orniation sought may be received 
 in time to act on it in counting the electoral votes, that the comiuit- 
 tee may employ persons to take depositions, in addition to raking 
 deiHisitiiuis itself. It fell to me to assign some reasons for this resolu- 
 tion. I wish to read brieily from what I then said as it appears in 
 the ollicial record. I take "leave to do so, lest it may be suspected 
 that the views I maintain are of recent growth. Here are my words 
 in 1s7:J: 
 
 AVhat does it propose f To iufpiire whether in certain States tho Constitution 
 has, in this respect, been executeil, and whetlur it has been executed accoidiug to 
 Its own re(Hiiieuients and the n (piiieiuents of the laws of the United Stales ; that 
 is all. Keeping befoi-e us f<ir tie- moment the exi)ies3 delegations of authority to 
 Uougress, may we not iiwiuiiv whether the electors appointed are persons holiling 
 
35 
 
 ofSces of trust or profit under tho TJnited States ? May wo not inquire whether 
 they wore elected on the day specified ? May we not inquire whether they were 
 chosen at the place required? Undoubtedly we may. * * * 
 
 Agaiu : 
 
 One Senator says wo have a rijjht to inqiiiro whether the claimants are iho elect- 
 ors appointed by'Loiiisiana. Take it so ; liow .are we going to find out ? Suppose 
 it turns out that there has been no election at all ; suppose tho whole election went 
 down, trodden out under the hoof of brute violence ; suppose military power or a 
 mob rode over tho election, and there were no ballots or ballot-boxes at all, and 
 certificates come here, may we not inquii-o whether those cei-titied were in truth 
 appointed by Louisiana ? 
 
 And again : 
 
 ******* 
 But I go further than to maintain the naked power of Congress to inquire. lin- 
 eist that we can utilize the result of the inquiry, and employ the facts in our ac- 
 tion upon counting or refusing to count electoral votes for President and Vice-Pres- 
 ident. I see no reason to doubt that any State having provided a popular election 
 as the mode of appointing electors, and' it being alleged that no such election has 
 been hold, or that the election was a mere mockery or mob, violative not only of 
 the laws of Louisiana, but in violation of the supreme law of the United States, 
 we are within the scope of our power in sending a committee to find whether the 
 allegation be fiction or fact. * * * 
 
 Once more : 
 
 To ascertain and make record of the facts, I will vote for the resolution. This 
 alone will be wholesome ; and I will vote for it also for the use we may make of the 
 facts in counting electoral votes, and determining any other proceeding which may 
 come within our pro\'lnce. 
 
 The resolution passed, I believe without a dissenting voice. No 
 dissent is recorded. In reply to it came a report from the Committee 
 on Privileges and Elections. To one or two passages from that report 
 I ask attention. It was submitted by the honorable Senator from 
 Indiana [Mr. Morton.] He says : 
 
 The third section of the act of Congress of 1792 declares what shall be the official 
 evidence of the election of electors, and provides that "the executive authority of 
 each State shall cause three lists of the names of the electors of such State to be 
 made and certified, to be delivered to the electors on or before the fir.st Wednesday 
 in December, and the said electors shall annex one of the said lists to each of the 
 lists of their votes." The certificate of the secretary of state is not required, and 
 the certificate of the governor, as provided for in this section, seems to be tho only 
 evidence contemplated by the law of the election of electors and their right to cast 
 the electoral vote of the State. If Congress chooses to go behind the governor's 
 certificate, and inquire who had been chosen as electors, it is not violating any prin- 
 ciple of the right of the States to prescribe what shall be the evidence of the election 
 of^electors, but it is simply goiag behind the evidence as prescribed by an act of 
 Ccmgress ; and, thus going behind the certificate of the governor, we find that the 
 official returns of the election of electors, from the various parishes of Louisiana, 
 had never been counted by anybody having authority to count them. 
 
 That, it will be observed, Mr. President, was to show that those 
 votes could not properly be counted because tho returns behind them 
 had not been counted and certified by anybody authorized. Let me turn 
 over and read what was said of the votes cast for the opposing electors : 
 
 The election of the Grant electors is certified by the Lynch returning board, but 
 that board did not have tho official returns before them, and their election is not 
 certified by the governor of the State as required by the act of Congress. 
 
 Under that resolution, passed without dissent, answered by the com- 
 mittee, the two Houses when the day arrived proceeded to dispose 
 of the electoral certificate of Louisiana. 
 
 Coming to a more recent period we had reported from the Commit- 
 tee on Privileges and Elections a bill to which reference has several 
 times been made. I refer to it in part to call attention to the fact that 
 only three republican members of this body voted against it, the Sena- 
 tor from Vermont [Mr. Edmunds] the Seiiator fjrom Wisconsin who site 
 
36 
 
 before me [Mr. Howi:] and myself. Wliat was it? A bill which 
 would have deposited with the House of Rei^resentatives absolutely 
 the decision of the late electiou, a bill which passed this body twice, 
 which at the end of the last session was arrested only by a motion to 
 reconsider made by a democratic Senator, but for which motion it 
 would be necessary now only for the House to take up the bill and 
 under the i)revious questioupass it — the call of the yeas and nays re- 
 quires fort V minutes. Like Shakespeare's fairy, the House could '• put 
 a girdle roiind about the earth in forty minutes." Unless the President 
 of the United States coubl lind in the Constitution some reason for 
 a veto, the die of this presidential electiou would be cast iu an hour— it 
 would have been cast e'er now. 
 
 Under the bill, the express consent of both Houses was given in ad- 
 vance that one House alone, without cause assigned, without exami- 
 nation, without anything but its ipse dixU, might say the vote of a 
 State should not iWcounted, i)rovided only there were conflicting cer- 
 tificates. There are now conflicting certiticates from four States, and 
 on these States the result depends. It has been said that this last 
 year's bill was more guarded than the bill on our table touching the 
 recognition it gave to conflicting certiticates, or papers puri)orting to 
 be certificates. I read the second section : 
 
 That if more than one return shall be received by the President of the Senate from 
 a State purpoi-tiu;? to be the cei-tificates of electoral votes given at the last preced- 
 in" electiou for Tresidcnt and Yicc-President iu such State, iUl such retunis shiUl 
 bo%)pened bv him in the presence of the two Houses when assembled to count the 
 votes- and that return from such Stat© and that only sh.all be conuted which the 
 two Houses acting separately shall decide to be the true and valid return. 
 
 Whoevcrwill gotothe Secretary'stablewillfind the words "and that 
 only" introduced with the pen after the types had done their work, so 
 as to clinch beyond peradventure the certainty that when from any 
 State certificates, returns, or papers purporting to be certificates, con- 
 flict, no certificate shall be counted unless both Houses concur aliirm- 
 atively in assertingthat one certificate shall be received, and then that, 
 and that only, shall be counted. The Senator from Indiana observed 
 the other day that there was nothing iu the bill now refeiTed to au- 
 thorizing anybodv to go behind the returns, nothing authorizing any- 
 body to go behind the electoral certificates, and that it was therefore 
 safer than the bill before us. Mr. President, there can be but one 
 true electoral certificate from a State unless they are duplicates. 
 There can be but one ; there cannot be two. One is genuine and one 
 is counterfeit. 
 
 I read again from last year's bill: 
 
 And that return from such State and that only shall bo counted which the two 
 Houses acting separately shall decide to bo — 
 
 What ? 
 
 The true and valid return. 
 
 It is said that when Adam and Eve came from Paradise, the world 
 was before them, and where to choose. They can have been no freer 
 than each House would have been under that bill : unbridled, unre- 
 stricted jurisdiction is there: no metes or bounds: each House may 
 go at large into the illimitable domain of discretion, caprice, or 
 power. If a niajoritv, a bare majority, of one in either House said no, 
 tliat was to b(^ the eiid of all consideration or eout roversy iu respect of 
 the vote of a State. The bill gave to one House that power whuh the 
 pending bill gives to no House, that power wliich the comnnttee as- 
 sert for both Houses, to be exercised only when a provisional exami- 
 nation made bv both Ihrough its trusted members, and made also by 
 five members I)f the indiciarv, has been fully made, and the reasons 
 and facts given, and tlun retaining to tlie last in the two Houses tlie 
 power to say whether that finding and report shall be efl'ectiialor not. 
 
37 
 
 Wo have been told this morning that the measure before the Senate 
 is a surrender of the rights of tlio republican party. I should abhor 
 it if it were a surrender of the rights of anybody, and especially of 
 that great party xvhich in war and in peace has for sixteen years con- 
 ducted with marvelous success the aftairs of the nation. Why is it a 
 surrender, and a surrender repugnant to those who only eight months 
 ago were bent upon a measure which now would leave us without the 
 ghost of a hope that the election may be declared in our favor ? Why, 
 it is a surrender because it guards the vote of every State against re- 
 jection, until both Houses, by a common tribunal, the fairest, the most 
 learned, the most iit, the most impartial that ingenuity can invent, 
 have investigated and found the law and the facts, and, in the light 
 of day, with a full statement of the reasons to be spread before the 
 world, have come to a deliberate judgment that the Constitution for- 
 bids the vote to be received. This is branded as a surrender by those 
 who lately insisted that one House alone, in unbridled caprice, and 
 with no statement of reasons required, might exclude a State by 
 merely saying the vote shall not be counted. I arn willing to let these 
 two surrenders stand side by side, while the nation compares them 
 with each other. 
 
 But, Mr. President, more recently than 1873 we have illustrations 
 of the judgment of the two Houses of Congress touching the residence 
 and possession of the power to ascertain and inquire into electoral 
 votes. Wo have had committees sitting for weeks in the delta of the 
 Father of Waters, and on the Atlantic coast, and a committee sitting 
 here playing like a swivel-gun in all directions and at longer range. 
 All this has happened during the j)resent session. Let me read to the 
 Senate what the Senate said in sending forth these investigating 
 committees : 
 
 That the said committee be, and is hereby, instructed to inquire into the eligibil-- 
 ity to office under the Constitution of the tjnited States of any persons alleged to 
 have been ineligible on the 7th day of November last, or to be ineligible as electors 
 of President and Vice-President of the United States, to whom certificates of elec- 
 tion have been or shall be issued by the executive authority of any State as such 
 electors ; and whether the appointment of electors or those claiming to be such in 
 any of the States — 
 
 Now observe — 
 has been made — 
 
 The appointment of electors has been made — 
 declared or returned, either by force, fraud, or other means, otherwise than in con- 
 formity with the Constitution and laws of the United States, and the laws of the 
 respective States ; and whether any such appointment or action of any such elector 
 has been in any wise unconstitutionally or unlawfully interfered with. 
 
 This language authorizes a search of the polls in voting-precincts. 
 No inquiry can go further, and in fact the committees have been 
 holding inquest on the registration and casting of votes, and the ap- 
 pliances employed to carry the elections, in several States. 
 
 For what is such inquiry ? If the two Houses have nothing to do 
 with the result, or with ascertaining whether electors were appointed, 
 if there is nothing to be done in regard to the authenticity of the 
 electoral certificates, if all votes the presiding officer has received, 
 good, bad and indifferent, irrespective of quality, are to bo counted, 
 as you would count the chairs in this Chamber, why is all this ? 
 
 I come now to speak of some and only of some of those who have 
 expressed opinions on this subject, and who have expressed opinions 
 notonlyauthorlzingthcenactmentof alaw,butopiniousirreconciiably 
 repugnant to the idea that the presiding officer of the Senate in any 
 contingency can lawfully exert the power in question. James Madr 
 ison, Thomas Jefferson, Samuel Dexter of Massachusetts, Samuel Liv^ 
 ermore, of New Hampshire, — he was President of the Senate; ho waa 
 
38 
 
 the colleague of John Laugdon, the first President of the Senate, John 
 Marshall, and I may add the whole Congress of IbOU, Martin Van 
 Puren, Daniel Webster, Thomas H. Benton, Stephen A. Douglas, Jacob 
 M. Howard, Jacob Collamer, Abraham Lincoln, John J. Crittenden, 
 Lewis Cass, Humphrey Marshall, Thaddeus Stevens, Henry Winter 
 Davis, John Bell, and many others whose names I vrill not read. I 
 will rather readtbe words of one whose name I did not read, but whose 
 name, whether it be the Mill-boy of the Slashes or Harry of the West, 
 will long kindle enthusiasm wherever in our laud it is heard. I have 
 seen in newspapers that Mr. Clay concurred in the power of the Presi- 
 dent of the Senate to determine the count of electoral votes. In 1821 
 Mr. Clay, as chairman of a committee, havTJig reported a resolution 
 which would have been absurd upon such a supposition, a resolution 
 which stood in sharp clear denial of the power of the presiding officer, 
 said : 
 
 Tho Conatitution required of the two Houses to assemble and perform the high- 
 est duty that could devolve on a public body — tu ascertain who iCad been elected by 
 the people to administer their national concerns. In a case of votes coming forwara 
 'which could not bo counted, the Constitation was silent; but, fortunately, the end 
 in that case carried with it tho means. The two Houses were called on to cnurrtercUe 
 the cotes for President and Vice-President ; of course they were called on to decide 
 what are votes. 
 
 Of course says Mr. Clay, the two Houses are called upon to decide 
 what are the votes. 
 
 It being obvious that a difficulty would arise in the joint meeting concemine the 
 votes of Slissouri, some gentlemen thinking they ought to be counted and others 
 dissenting from tliat opinion, the committee thought it best to prevent all difficulty 
 by w.'iiving the question in the manner proposed, knowing that it could not afifect 
 tho result of the election. 
 
 Again : 
 
 Ml-. Clay would merely observe that the difficulty is before us ; that we must de- 
 cide it when the Houses meet, or avoid it by some previous arrangement. The com- 
 mittee being inoraUy certain that the question would arise on the voUs in joint meeting, 
 thought it best to give it the go-by in this way. 
 
 Now observe Mr. President here is the passage that has been quoted 
 as meaning something else. 
 
 Suppose this resolution not adopted, the President of the Senate will proceed to 
 open and count the votes ; and would the Bouse allow that officer, simply and alone, 
 thus virtually to decide the question of the legality of the votes t If not, how then were 
 they to proceed t Was it to be settled by the decision of the two Houses conjointly or of 
 the Houses separately f One House would say th* votes ought to be counted, the other 
 that they ought not ; and Uien the votes would be lost altogether. 
 
 This is strange language for a master of statement, if he meant that 
 the power to decide upon the validity of votes lay with the presiding 
 officer. 
 
 Not meaning to refer by name to living men, I may schedule among 
 the authorities all those who voted for the twenty-second joint rule 
 in either House, all who acted under it ; especially all who vot«d for 
 the bill reported by the Committee on Privileges and Elections which 
 •passed this body a few months ago, and also those who voted for tho 
 resolution under which committees are now proceeding to inquire. 
 Did any Senator of republican faith vote agaiust that resolution f 
 
 Mr. President, what is the answer to this broad, deep, irresistible 
 stream of historic precept and example f It was given by the hon- 
 orable Senator from Indiana. He said : if nothing is done, a con- 
 dition of affairs will exist in which the President of tho Senate, to 
 prevent a dead-lock, must act from necessity. 
 
 The honorable Senator from Indiana has broached that doctrine 
 before. Here it is in a report made by him on the 1st of June, 1874, 
 a report which I infer in an unusual sense was the expression of his 
 individual views. I observe in it these words : 
 
 So powcrfid have been these obUgntiona that I believe scarce an instaoLoeiff 
 knowu whore electors have violated theuo pledges. 
 
39 
 
 The use of tlie personal pronoun there, seems to make this a per- 
 sonal and individual declaration, as well as a grave report from a 
 committee. I read from it this ])aragraph. It cannot have been a 
 loose opinion ; chairmen of committees in the Senate do not, in writ' 
 ing, report loose opinions. 
 
 Clearly — 
 
 Says the author of this report — 
 
 Clearly the framers of tbo Constitution did not contemplate that the President 
 of the Senate, in openinj; and counting the vote for President and Vice-President, 
 should oxerciso any discretionary or judicial power in determining between the 
 votes of two sets of electors, or upon the sufficiency or validity of the lecord of 
 the votes of the electors in any State ; but that he should perform a merely minis- 
 terial act, of which the two Houses were to bo witnesses and to make record. But 
 the exercise of these high powers may devolve upon him ex necessitate rei. 
 
 Supplemented by the intimation made by the Senator during this 
 debate, we may all see what this means. 
 
 We, l)y refusing to make provision, are to create a necessity, and 
 that necessity is to create a power and create a man to wield it. 
 
 The honorable Senator stigmatized the biU now before the Senate 
 as " a contrivance." He might well have applied such a term to his 
 own scheme of necessity. If ever there was a contrivance, if ever 
 there was a political Hell Gate jjaved and honeycombed with dyna- 
 mite, there it is. 
 
 Is a necessity, purposely created, to beget a power which " clearly 
 the framers of the Constitution did not contemplate?" Is a con- 
 trived state of aftairs to enthrone in this land a governing instru- 
 mentality which the Constitution does not sanction ? 
 
 Is the pending bill to be defeated in order to bring on this necessity ? 
 
 Mr. MORTON. Will the Senator finish the reading of the sentence ? 
 He left off reading one of my sentences. 
 
 Mr. CONKLING. I shall read the whole paragrai^h. The Scripture 
 says "a contented mind is great riches," and although I know how 
 hard it is for the Senator from Indiana to listen to a dull speech, if 
 he will possess his soul in patience he will hear read the whole par- 
 agraph. Let me first be sure to make plain so much as I have read. 
 The argument, but little concealed the other day, was that the pend- 
 ing bill should be defeated, and this would bring on a necessity, which 
 necessity would open the way to an exercise of power, in the language 
 of the author of this report, clearly not contemplated by the framers 
 of the Constitution. Mr. President " necessity knows no law." Who 
 is to decide whether he is called and chosen by necessity to be the 
 master of an opportunity ? 
 
 Necessity : that arch fiend and foe of government, that prolific 
 mother, and apology of anarchy, revolution, despotism, and fraud, 
 ever since human government began. The pretensions of necessity 
 have age after age attrighted humanity, trampled on right, gendered 
 wars, and swept realms and rulers 
 
 Through caverns measureless to man, 
 Down to a sunless sea. 
 
 Let not the representatives of American States, in this century year, 
 connive at bringing about a necessity, they know not what, fraught 
 with consequences they cannot order or foresee. Suppose the Speaker 
 of the House says he is the man of destiny, that necessity has created 
 Mm to untie this tangled problem. Suppose the House says it from 
 necessity is to be tha Deus ex machina, borrowing a phrase from the 
 Senator from California ; suj^pose any man or any power chooses to 
 deem himself or itself invoked by necessity, where are the limits of 
 such a theory ? Let mo read from this same report a view of some fi| 
 the consequences of this so-called necessity. 
 
40 
 
 There is imminent danger of revolution to the nation whenever the result of a 
 presidential election is to bo deterniineil by the vote of a State in which the choice 
 of eh-ctoi-s lias been inejrular or is alle^ied to have been carried hy fi-iud ur \'iolenco, 
 and where there ia no method of haviuL: these questious examined and settled la 
 advance — where the choice of President depenils upon the election in a State which 
 has been jiublicly characterized by fraud or violence, and in which one ])ai-ty is al- 
 leged to have triiiU]i>hed and secured the certificates of election bv chicanery or 
 the fraudulent interposition of courts. Such a President would in adrance beahirn, 
 of hill moral potrer and authority in his ojjlce, would be looked upon asa ui-urpfr, and 
 the coiuequences that toould rexu'.tfrom such a state of things iio man can predict. 
 
 Mr. Presitleiit, it is because I mean, at every stage which the hiw 
 and the facts shall jtistify, to uiaiutaiii that the republican nominee 
 has been cho.sen Chief Magistrate of tlie nation ; it is becau.se I be- 
 lieve him to be a patriot ami incaiiablo of Nvlshiiig injury or dispar- 
 agement to his country, that I would have his title .so clear that it cau 
 never be challenged with a pretext for believing that he, and they 
 who supported him, meant to clutch usurped power, or dared not sub- 
 mit to a fair and constitutional examination the truth of the election. 
 
 Now I will read the climax of the paragraph of the report, which 
 the Senator from Indiana wishes the iSenate to hear: 
 
 Bat the exercise of these high powers — 
 
 The power to judge and.decide between conflicting certificates, and 
 to determine the result — 
 
 But the exercise of these high powers may devolve npon liim ex necessitate rei, and 
 whatever decision he may make between the two sets of electors or upon the sutfi- 
 ciency and validity of the record of the votes— whether on the evidence of the right 
 of the electors to'cast votes, or whether they have been cast in the manner pre- 
 scribed by the Constitution— his decision is liiial. 
 
 And all this ex necessitate rei, although the framers of the Constitu- 
 tion meant, and meant " clearly," that ho should never exert any- 
 such f unctious at all. This bastard child of destiny, born in the throes 
 of an exigency specially arranged by the refusal of Congress to legis- 
 late, rising above the Constitution is to decide, and when he has de- 
 cided, from the rising of the sun even to the going down of the same, 
 there shall not be one man who does not bow mutely and reverently 
 to his decision. 
 
 Again I say it is not for representatives of a patriotic party of law 
 and order, iii the presence of the events before which we stand, to re- 
 fuse by law to constitute a peaceful, certain impartial mode under 
 the Constitution, and above it, of ascertaining the true result of the 
 recent election. 
 
 How shall this be done ? Senators say that to ascertain the result 
 of the election, is the attribute and duty of the two Houses. If that 
 be the law, this bill does not overpass the law. 
 
 The pending measure has been called a compromise. If it be a 
 comi)roinise, a compromise of truth, of law, of right, I am against it. 
 My life has taught mo not to contrive comiiromises but to settle is- 
 sues. Every compromise of principle, is a make-shift and a snare. It 
 never stood ; it never deserved to stand. It is the coward's expedient 
 to adjourn to another day, a controversy easy to govern in the fotint- 
 ain, I'lit liard to struggle' against in the stream. If this bill be stich 
 a coMipioiuise. 1 am against it. Hut I deny that it is a compromi.se, I 
 denythat it compromises anything; and, above all, that itcompromises 
 right, principle, or the Coilstitution. To contest a claim, is not to 
 compromise it. To insist upiui the right, and sulmiit it to an hoiu'st, 
 fair scrutiny and determination, is not to comiuoiuiso it. A presi- 
 dential election has occuned. Unless there is a tie or a failure, some- 
 body has been chosen. To ascertaiit and establish the fact, is not a 
 coinpi-oniise. To reveal and establish the truth of a tiling already 
 past and lixcd, is as f.ir from a compromisi' :is the east is from the west. 
 • Above all, Mr. President, this is not a eomi)romise of the position of 
 
41 
 
 those -who hold that the two Houses as such ,arebonn(l to count the votes ; 
 and there I address a Senator who diltors from me in political belief, and 
 who opposes this bill, as do others of his faith, because he holds that 
 the Constitution commands the two Houses to count the votes. I say 
 the bill is no compromise by those who entertain this view. The two 
 Houses consist of four hundred meuibers. Four hundred men cannot 
 each handle and scrutinize, and examine and tabulate, all the contents, 
 true and false, of these electoral certiiicates. They might act by tell- 
 ers. What are tellers ? The eyes, tlio ears, the hands, the faculties 
 of the two Houses : that is all — the proxies of the two Houses, as one 
 may be the proxy of stockholders in a corporation. Four hundred 
 men cannot do the mechanical or actual office of counting. They may 
 depute two men from each House to do it ; they may appoint a com- 
 mittee to do it. That is what our fathers proposed ; they called it a 
 grand committee. There is no harm in my saying that in committee 
 I wished this tribunal to be called a committee : but names alter 
 nothing. It is a committee in legal force and effect. It represents the 
 two Houses, as tellers would represent them — no less a committee be- 
 cause five members of the highest judicial tribunal are part of it. Is 
 the silver commission, at the head of which stands my distinguished 
 friend from Nevada [Mr. Jones] less a commission of the two Houses 
 because experts, three in number, not members of either House, be- 
 long to it? Suppose the Constitution made it the duty of Congress 
 to observe the position of Jupiter, and a committee was appointed, of 
 which the honorable Senator from Connecticut \_^lr. Eaton] ought 
 to be one. Suppose on that committee was placed Professor Henry, 
 to guard the Senator from Connecticut against observing Venus in 
 place of Jupiter, [laughter,] would the committee or its character be 
 destroyed by the presence of Professor Henry, not a member of either 
 House? Kecently a commission of the two Houses has been consti- 
 tuted to re-organize the Army, and on that commission are distin- 
 guished men not members of either House. Is it a void commission 
 for that reason ? If the General of the Army is on this Army com- 
 mission, would any man like to go into history with it known of him 
 that he supposed that in factor in law the commission was impaired, 
 or that it was not strengthened and dignified, by putting upon it the 
 most instructed men, although they were not members of either 
 House ? 
 
 The honorable Senator from Ohio says the bill creates offices, and 
 that the judges of the Supreme Court ought to be confirmed by the 
 Senate. If their functions were such as he ascribed to them, I think 
 they should at least be confirmed. He says they are " to make a Pres- 
 ident." Inasmuch as the Constitution has provided that the States 
 and people are to do that, and has refused to allow either House to do 
 it in the first instance, I quite concur with the Senator that they who 
 are to make a President, ought at least to be confirmed. 
 
 Mr. SHERMAN. If I do not interrupt my friend 
 
 Mr. CONKLING. Not at all. 
 
 Mr. SHEKMAN. I will mention to him the difference between what 
 is called the silver commission and the Army commission and this 
 commission to make a President. When the silver commission report, 
 their action is of no validity and either House may disregard it, aud 
 so with the report of the Army commission ; but when this commis- 
 sion to make a President reports, it requires the alfirmative action of 
 both Houses consenting thereto to undo their work. 
 
 Mr. CONKLING. Mr. President, it often happeus that when one is 
 attempting a speech, particularly a poor speech, some Senator who 
 interrupts him anticipates something important to another branch 
 of the argument. When the Legislature of New York repealed the 
 
42 
 
 rnle in Shelley's case, somebody asked Chancellor Keut why he did 
 not strike out the chapter iu his Commentaries relating; to that sub- 
 ject ? The Chaucellor replied "Why, that is one of the most ad- 
 mired parts of the work; how could I strike it out?" And here 
 comes the Senator from Ohio now, and is about to spoil one of the 
 best of my points not yet reached. [Mr. Sherman rose.] 1 hope he 
 will not (lo so. 
 
 Mr. SlIKRMAX. I will withdraw my interruption, then. 
 
 Mr. CONKLING. That is right. 1 hope my honorable friend will 
 forbear, because I liave a delinite theory on his point. I will not 
 take my seat without disputing hissuggestiou, and trying to confute a 
 thiory, fallacious it seems to me, and i)ut forth now for the third lime. 
 
 The honorable Senator from Ohio thought that these judges of 
 the Supreme Court should be coulirmed by the Senate iu order to 
 act on this commission. The Senator from New Hampshire [Mr. 
 Ckagin] behind me, ejaculates from his scat that " they have been 
 once," and the remark seems to me seasonable and pertinent. They 
 have once, on the nomination of the President and by the action of 
 the Senate been certitied ; or as Mr. Benton would havt- said '' certifi- 
 cated " as men selected from the whole nation for their fitness to weigh 
 evidence, and to examine and ascertain questions of law. They are 
 anointed with the public confidence . But the suggestion of the Sena- 
 tor froui Ohio is that this bill establishes offices. I say that it merely 
 api)oints a connuission. From time iuunemorial iu England, from 
 time whereof the memory of man runneth not to the contrary, par- 
 liamentary connuittces and commissions have l)een established com- 
 posed not only of members, but of persons not members of either 
 house. They are not officers in the seuse intended Ijy the Senator. 
 
 Again, was it ever heard that Congress cannot impose upon na- 
 tional officers additional duties ? Is there any officer in the Govern- 
 meut on whom Congress may not impose additional duties? I know 
 the Supreme Court said, in the case of Prigg rx. The Commonwealth 
 of Peuusylvania, that justices of the peace, being State officers, were 
 not hound under the fugitive-slave act of 170:3 to act as commissioners, 
 but, said the court, if they choose to act it is entirely competent : not 
 being national officers, however. Congress cannot compel them to act. 
 
 But what said the first ))ensiou law eyer passed ? It undertook to 
 make the judges of the Federal courts commissioners. By a some- 
 what bungling i)luase it spoke of " the court " and not the judges, 
 and men iiueried whether uuder that language, denoting the court, 
 there might not be doubt. But did anybodyever deny that Congress 
 had power to luake the judges of the Federal courts eouunissioners of 
 ])ensious? I think it never was deuied. Does the honorable Senator 
 from Ohio doubt that Congress has power to employ a judge, whether 
 of the court of Alabama claims, or Supreme Court, or auy other court, 
 to settle a doubtful boundary, or to exert any other faculty essential 
 to the public welfare ? 
 
 I suliuiit to the honorable Senator from Ohio in answer to his last 
 objeetiou, that the two Houses, from beginning to end, make this ex- 
 amination. They agree beforehand to make it in a particular way, 
 to make it by a committee. That counnittee incarnates the two 
 Ilouses; itisiulawthotwoHouses. Byaction beforehand, both lUmsea 
 agree not to be liually bound by what the commi.ssiou shall do ; but 
 ihey agree to the mode in which the examiuatiou shall be nuide. 
 What is the mode? That the commission shall decide only provis- 
 ionally ; only conditionally. Tiie two Hi>u.sesret.iin the whole thing 
 to (he iiid aiwolutely iu (heir own hands. A Senator said yestenlay, 
 and it has been repeated to-day, that if the two Houses were both re- 
 quired to approve by affirmative votes what the commission does, it 
 
43 
 
 wonld then be not a delegation of power — a devolution of the power 
 of the Houses, but a retention and exercise of jKiwer by the Houses 
 themselves. 
 
 Mr. President I deny tljis distinction. The iiower is neither more 
 or less retained in the hands of the Houses, whether they approve the 
 finding of the commission affirmatively, or Ijy refusing to negative 
 the tiuding. The bill provides that the examination being made by 
 the Representatives of the two Houses, by those who constitute the 
 eyes and ears and hands and faculties of the two Houses, and that 
 action reported provisionally, it shall be deemed the action of the two 
 Houses unless they disapprove it. The Supreme Court of the United 
 States, when eight judges sit, and a decree or judgment comes up fiom 
 a court below, by a foreordained rule provide that if four judges are 
 for the decree and four against it, the decree is affirmed ; it becomes 
 the judgment of the court, nay, it virtually becomes in that case the 
 unanimous judgment of the court. Why? Because the court, unani- 
 mously in advance, has ordered and agreed that such a division oc- 
 curring, the judgment reviewed shall "be affirmed. This is the rule 
 of courts in general. A decision or finding coming before a court for 
 reversal or affirmance, is affirmed unless a majority agree to reverse 
 it. The honorable Senator from Indiana moves away. [Mr. CoxK- 
 UXG while speaking had advanced toward Mr. Morton's desk, just 
 across the aisle.] 
 
 Mr. MORTON. I retreated as far as I could. [Moves away.] 
 
 Mr. CONKLIXG. Mr. President, the honorable Senator observes 
 that he has retreated as far as he could. That is the command laid 
 on him by the common law. He is bound to retreat to the wall, be- 
 fore turning and rending an adversary ; and as he has retreated as far 
 as he could, I will repay his coyness with a reminiscence. A few months 
 ago it was proposed in the Senate to import the Chief-Justice of the 
 Supreme Court into the proceeding of counting electoral votes, and 
 of him, and the presiding officers of the two bodies, to constitute a tri- 
 umvirate which should he the umpire to cast the die between the two 
 Houses when they differed about the count. The honorable Senator 
 from Indiana voted on call of the yeas and nays for that proposition, 
 no constitutioual doubt restraining him. Does he shake his head ? 
 
 Mr. MORTOX. I will satisfy you on that point. 
 
 Mr. CONKLING. The Senator promises to satisfy me. He seemed 
 to shake his head. I was about to hold ux) lue record, to hold the 
 mirror up to nature, and satisfy him that the chairman of the Com- 
 mittee on Privileges and Elections did sanction with his great weight 
 and authority the right of the law-making power to snatch the Chief- 
 Justice from his judgment-seat and briug him here, and make him 
 one of a trinity which should arbitrate between the two Houses and 
 conclude both by the vote he should give. 
 
 Returnnig now to the point, I repeat, Mr. President, that when a 
 court of first instance is constituted to inquire, to hear, and re- 
 port to the two Hoiises, and it is left with the Houses to reverse or 
 to refuse to reverse the finding, the tribunal is provisional, and the 
 ultimate adjudication is reserved in the two Houses ; and I submit to 
 the Senator from Ohio that, speaking iu the spirit of law, it makes 
 not the slightest diftcrence whether the provision is that theapinoval 
 of the acts of the commission shall 1)6 by affirmative action, or by 
 withholding affirmative action. I speak in the presence of trained 
 lawyers, and yet I sjieak in the presence of no lawyer who on rellec- 
 tiou will challenge the position. 
 
 Mr. President, had I discussed, as I have not done, clearly and fully, 
 my views in regard to this subject, I sliould feel better authorized to 
 inquire how shall the two Houses exercise the power and the duty 
 
44 
 
 resting on tlicm ? We cannot summon the stars ; we cannot com- 
 mand gods or angels. We must liave recourse to men. Wo have 
 providrd tliat each House shall select its most trusted members. We 
 have provided that added to these, shall be live judges of the highest 
 court, live " si'cred judges" the Senator from Ohio called them. Why 
 "sacred?" Because they administer justice. What is the ancient 
 and modem symbol of justice f A stony ligure vrith blinded eves, 
 with an arm unmoved by a throb of feeling, holding unshaken the 
 even scales. I5fcause these judges ai'e so typified, the Senator from 
 Ohio says they are "sacred judges." Then tliey can be trusted. Is 
 the proitosed duty beneath them ? They never sat in a greater or a 
 graver cause. John Jay, when Chief-Justice, crossed the sea to nego- 
 tiate a treaty, not so great by far as that covenant of law and peace 
 and right which these judges are to establish. Judge Nel.son sat in a 
 counnission whose duty and privilege it was to hold up before the 
 world the attainments of America in dignity and reason, Ity showing 
 that the nation was .strong enough and proud enough to withdraw 
 from the forum of brute force and passion a great question, and sub- 
 mit it to legally constituted authority. One of the grandest empe- 
 rors on earth acted as umpire in the same proceeding, and the fifteen 
 millions obtained by the decision, was valueless compared with the 
 tranfjuillity and composure of our landfora single day — paltry iuileed, 
 by the side of the inestimable advantage of proving l>y actual experi- 
 ment that no emergency is so great that forty-five million freemen 
 cannot meet it calmly and safely under the free institutions they 
 cherish. If "ho who ruleth his own spirit be greater than he who 
 taketh a city," what shall be said of the grandeur of millions who by 
 an act as quiet as the wave of a wand can calm the commotions of a 
 continent in an hour ? 
 
 No jot or tittle of authority not reposed by the Constitution in the 
 two Houses of Congress, acting separately or together, is broached 
 in prescribing the jurisdiction of this commission. Familiarly in 
 ancient and in I'eceut times, deputing one to do an act for another, 
 the customary phrase is "with like force and effect as if I myself did 
 it." That in substance is the behest of this bill, with like force and 
 .eftect by you who represent the two Houses for these purposes, as if 
 the two Houses and every member were present, as the two houses 
 of Parliament were in law present always when a full and free con- 
 ference was held. The bill utters the voice of the Houses thus: To 
 you the chosen deputies of the two Houses who on honor and on oath 
 rejiresent them in this investigation, we say that you are authorized 
 to do exactly that which the two Ht)uses, acting separately or together, 
 themselves might do. Take the Constitution for your chart and 
 guide. Whateveritandthe now existing lawcommands, that do: thus 
 far and no farther. You stand in lawyer's phrase in >itatH quo. Ab- 
 stain fioui ev»'rything from which those who constituted you ought 
 to abstain, do nothing except to deal witii that whii'li lies within the 
 domain of constitutional (luty, ami report to us who repose hpecial 
 trust and confidence in you, all the reasons that move yon, all the 
 conclusions to which you come. 
 
 I have heard it suggested that son.ething in this bill implies, that 
 going behind the faculties of the States, going behind the lawful ex- 
 ercise of that power which the Constitution rejtosesin the States, and 
 whei-ewith the Constitution crowns them, this commission may imiuiro 
 at large, by canvassing the votes cast in jiarishes or even pn'ciiuts, 
 by going into the (juestiou whether those who voted were all that 
 should have voted, whether tliey voted as they wished to vote — in 
 short that the commission may become a national "returning l)oard." 
 The law has this ancient nuixim — " that is certain which can be reu- 
 
45 
 
 tiered certain." We say in this bill, "take tlie Constitution as it stands ; 
 that is yourguidu ; there you will hud the boundaries of your power; 
 you shall not overpass them ; execute the Constitution, and sto])." 
 
 But says one Senator why does not the bill specify all the tilings 
 these men are to do. To aslc the question is to suggest unnumbered 
 answers. Answers spring up as the army of Roderick Dhu sprang 
 from the heather, when a whistle garrisoned a glen. In tbe first place, 
 there is an irreconcilable diilereuce of opinion as to the nature and 
 extent of the power of the two Houses, or either, to pry into or pene- 
 trate the act of the States. In the next place, Avere all agreed, it 
 Avould be impossible in a bill to embody a treatise or commentary which 
 should provide for every contingency or ijossibility. It was Dean 
 Swift who made a written schedule for his attendant of all the things 
 ho was to do ; each and several his duties were set down ; but on a 
 Sunday Dean Swift fell into a ditch and called for assistance, but the 
 attendant produced his schedule and said he found nothing there 
 which required him to help anybody out of a ditch on Sunday. It was 
 supposed by the committee, as the sense of its niembers was only finite, 
 and very finite, that when they called, in addition to five picked men 
 of each House, five experts in the law, men who had been selected 
 from the great body of the nation for their training and adaptation 
 to exploring legal distinctions and ascertaining legal truth, it was 
 hardly worth while to attempt to accompany this trust of provisional 
 authority with a minute bill of j)articulars of all ^he things which 
 might be done, and how, and what in detail must not be done. 
 
 It might have been possible, by restraint and exclusion, to put fet- 
 ters on these fifteen members. Every Senator who hears me knows 
 that any attempt to run the exact boundaries of the power to admit 
 evidence, any attempt by the concurrent action of the two Houses to 
 agree upon a universal solvent, to come to that exact unit of accu- 
 racy in defining jurisdiction and pertinence of evidence which all 
 would approve in advance, although a possibility in theory, would 
 be impossible in reality. 
 
 The Senator fi'om Massachusetts [Mr. Dawes] in a tone which few 
 beyond me hear, inquires whether I mean that they have no limit in 
 this bill. Mr. President I had supposed that the Constitution had 
 raised not only a hedge and fence, but a wall of limit to the jjowers it 
 confers. I supposed that when five of the most largely instructed 
 and trusted members of the Senate, and five oi the most largely in- 
 structed and trusted members of the House, were authorized to meet 
 five judges of the highest and most largely instructed judicial tribu- 
 nal of the land, we might trust to them to settle what a court of oyer 
 and terminer settles whenever it is called upon to determine w-hether 
 it has jurisdiction to try an indictment for homicide or not. I supposed 
 that giving it the instrument by which its jurisdiction is to be meas- 
 ured, we could trust this provisional tribunal of selected men to run 
 the boundaiy and fix the line marking their jurisdiction, and to blaze 
 the trees. I hear a voice ask " Where they please ?" This cannot have 
 been the voice of the Senator from Massachusetts. That Senator is 
 a lawyer, and he knows that judges cannot lawfully do anything be- 
 cause they please. They must stop where the law stops. 
 
 I have repeatedly insisted that the Constitution and the existing 
 law, is the boundary ; and I believe the act of 1792 is the only statute 
 applicable. No I am wrong, the act of 1845, tovichiug the choice of 
 presidential electors, may also have a bearing. Inasmuch as the Con- 
 istitution, the law, and the acts of Congress of which I think there are 
 ibut two, prescribe the power, inasmuch as we make the existing law 
 vtho guide-board, inasmuch as we command and conjure the commis- 
 sion to go according to ihe CoustitutiftU and Jo keep ^ithin its limits, I 
 
4G 
 
 supposed it could not be a roving commission to traverse at large the 
 realuis of fact, sui)er&tition, and lietion. 
 
 Mr. DAWES. Mr. President, will it interrupt the Senator if I say 
 a word? 
 
 Mr. CONKLING. Not at all. 
 
 Mr. DAWES. I hear the Senator state distinctly that this commis- 
 sion is to be bound by the Constitution ; but I hear him state just as 
 distinctly that in his opinion tliis commission, being bound Ijy the 
 Constitution, could not invade what I deem to be the prerogatives of 
 the States to settle the title of their own electors. If I could hear him 
 and all of the members of that committee make the same clear and 
 uneciuivocal assertion I should be greatly co>rforted. My discontent 
 and a]»prehension arise from the fact that while I hear him make this 
 equally unequivocal expression of his own opinion of what the bound- 
 ary is I hear othere with equal distinctness and clearness and posi- 
 tiveness say that though they also believe this commission to be bound 
 by the Constitution they believe the Constitution authorizes them to 
 go into and settle questions which in my mind belong exclusively to 
 the States to settle. That is what troubles me, and the Senator will 
 pardon me for interrupting him in the way I have in order to get as 
 distinctly asl couldfrom the mcmbersof thiscommittee,not only what 
 I knew before every one of them would say, that the commission 
 would have to limit the exercise of their power by the Constitution, 
 but, inasmuch as one member of this committee believes the Consti- 
 tution will stop them at one point and another member of the com- 
 mittee believes it will not, I suggest to the Senator would it not be 
 safer for us by a statute to limit them ? Then we shall know where 
 the boundary is. 
 
 Mr. CONKLING. The boundary of this power is not only one of 
 the bones of contention, but the very marrow of it. If there were no 
 doubt in that regard, we should need no bill. If the two Houses, and 
 the members of the two Houses, were clear and concurrent in their 
 views, we should need no commission. It is because of an irreconcil- 
 able conllict of opinion that we propose to execute the Constitution in 
 this way ; and if I have not so said before, I want now to say that in my 
 opinion it is not only a competent execution of the Constitution, but 
 one substantial, effectual, aud compliant with its spirit strictly. But 
 the Senafor from Massachusetts says he has heard the Senator fiom 
 New York say something aud the Senator from somewhere else say 
 something; may I remind my honorable friend that what I may say 
 in this regard, or even Avhat he may say, is only a putt' of air. The 
 commission is to say on the oaths of its members and subject to our 
 review what by the Constitution is connnitted to it. If the Senator 
 from Massachusetts shall be of this commission, what he might think, 
 or if I were to be of it what I mi<jht think would then be of great mo- 
 ment. I submit to him it is ati'tue and cumin, and not of the weight- 
 ier matters of the law, to consider wiiat may be thought l)y this Sen- 
 ator or that Senator of the range aud luovince within which this 
 commi.'<sion may move. They must ascertain for themselves. If the 
 question in the State of New York is whether the court of oyer and 
 terminer only, or also the court of sessions, has power to try indict- 
 ments for homicide, no matter whether it be more or less probable that 
 A B or C 1) may be lonvicted in one court or the other, the court 
 passes upon the (inestion of its jurisdiction. So this court of lii-st in- 
 stance, if it holds for exanqtle that it has no jiower to go behind the 
 certilicatc of the govermn- of Oregon, that altliough he certified three 
 men were electors, one of whom confessedly — I say confessedly — in 
 the jiopular sense — never received a majority by which alone hecould 
 be chosen ; — suppose they hold that tiiat certificate is a barrier whidi 
 neither House can pass, and that the three votes are to bo counted, 
 
47 
 
 as certified by the governor of Orei^on, so be it ; aud the f\vo Houses 
 are brought to say whether they will approve or will disapprove that 
 decision. On the contrary 8upi)ose they say " we will go behind the 
 certificate, we will go behind the certificate in Louisiana, not to in- 
 quire about the weight of evidence, not to find out whether the re- 
 turning board found rightly or wrongly, not even to inquire whether 
 they found honestly or corruptly, but we will go behind the certifi- 
 cates merely to inquire as a jurisdictional question whether the re- 
 turning board of Louisiana had before it, and was authoriced to act 
 upon, the evidence of the popular will." They so re[iort, aud the hon- 
 orable Seuator from Massachusetts, having one vote, and a potent 
 voice, will pass upou the report. On the contrary suppose they say 
 they have a right to go a little further than that, and to ascertain 
 whether the returning board of Louisiana or the governor of Oregou 
 was moved by corrupt motive. Suppose they hold that they may 
 search even so far, aiul condemn what has been doue in Oregon be- 
 cause greed or corruption moved the hand that held the j)en when the 
 certificate was writteu. Upon such a ruling, the Seuator from Mass- 
 achusetts sitting as a member of the court of review, is to pass, on 
 his oath and on his responsibility as a representative of a State. 
 
 Mr. DAWES. I am sincerely anxious to understand tlie whole scope 
 of this bill, and if I uuderstaud the Senator aright now he states that 
 there was i» this committee an irreconcilable dift'ereuce as to how 
 far 
 
 Mr. CONKLING. The Senator must pardon me there. I did not so 
 state. I spoke of nothing in the committee : I spoke at large, saying 
 that there is an irreconcilable difference of opinion. I avoided saying 
 anything about the committee. 
 
 Mr. DAWES. I think the Senator is right. The Senator has cor- 
 rected me properly. The Senator says the committee recognized an 
 irreconcilable difference upon how far the Constitution will permit 
 this commission to go into au investigation of matters that belong to 
 the States. To meet that irreconcilable difference, as I understand 
 him to say, they propose in the bill to take the construction of the 
 Constitution from this commission. 
 
 Mr. CONKLLNG. Mr. President, the Senator from Blassachusetts 
 is too astute not to know, too alert to forget, that he who in advance 
 can exactly fix and measure the limits and application of constitu- 
 tional authority, holds in his hands the horoscope in which may be 
 read with some distinctness the final issue of the whole matter. It 
 was the purpose and the laborious effort of the committee, to establish 
 a provisional tribunal, from which should come, with impartiality as 
 great as could be obtained by the instrumeutalities of humanity, a 
 result conforming to law and to the facts, a result resting neither on 
 the wishes of the Senator from Massachusetts uor on the wishes of the 
 most pronounced opposing partisan, but resting on the Constitution 
 and the law as they were on that day in December — I believe it was 
 the 6th, — when the electors in all the States cast their votes. 
 
 The sole object was to devise an instrumentality to reveal and es- 
 tablish, historically and constitutionally, the truth and fact of a past 
 transaction. For us to undertake in advance to say definitely and in 
 detail, what this commission should decide, was to abandon the attempt 
 to present a measure which would command the approval of the four- 
 teen members of the two select committees, and afterward of the Sen- 
 ate and the House with their four hundred members, and at last of 
 that great constituency which stands behind us all. We held that a 
 tribunal fit to be intrusted ev^en provisionally with passing ui)on any 
 part of this controversy, was fit to be intrusted with judging of their 
 own powers after we had delivered into their hands, as their chart 
 and conqiass, the Constitution aud law of the United States, aud told 
 them to stand to and abide by that in every contingency. 
 
48 
 
 If the honorable Senator frora Massaclmsetts proposes to launch ou 
 the lieady currents of debate in these Houses, the question what at 
 every step would be correct in the proceedings of the commission, I say- 
 to him he pro])oses to set oail on a soundless and shoreless sea ; the 
 4th of March, 1877, the 4th of March, le78, would not ^ee the end of 
 a debate attempting to predict the solution of inquiries so intricate, 
 varied, and entangled. We left the commission, as the law of Mas- 
 saclmsetts leaves to the lowest court which in the first instance tries 
 a man ou a charge involvinghislil'c or his liberty, to determine whether 
 it has power to entertain indictments for offenses such as that. We 
 left it as the law leaves the most menial civil tribunal to determine 
 whether, and how far it has power to entertain a controversy, the most 
 insigniiicant, arising between one man and another, whether one owes 
 the other money or not. The Senator in a subdued voice now suggests 
 the accuracy with which the jurisdiction of courts is a.sserted in the 
 State of Ma.ssachusetts and he bids me make this as accurate as things 
 are made in the State of Massachusetts. Mr. President, the sentiment 
 of despair is the only sentiment produced by such an appeal. The idea 
 if the representatives of all the States making anything as exact as 
 things are made in the State of Massachusetts! [Laughter.] The 
 Senator says that I stated we have done as is done in Massachusetts. 
 I did not mean that. It was the Queen of Sheba who said that she 
 never realized the glory of Solomon until she entered the inner tem- 
 ple. The idea that the rejjreseutatives of other States could breathe 
 liie upper air, or tread the milky-way, never entered into the wildest 
 ;ind most presumptuous Hight of imagination. O no, Mr. President. 
 V\"henever the thirty-seven other States attain to the stature of the 
 grand old Commonwealth, the time will come when no problem re- 
 iiiains to be solved, and when even contested presidential votes will 
 count themselves. [Laiighter.] Then in every sphere and orl)it every- 
 thing will move harmoniously, by undeviating and automatic process. 
 
 Mr. President, I owe an apology to the Senate, and I make it feel- 
 ingly, for the time occupied in this discussion. 
 
 I signed this report. I will vote for the pending bill ; vote for it, 
 denying that it is a compromise, believing that it is no compromise, 
 believing that it surrenders the rights of none, and maintains the 
 rights of all. It seems tome fair and just. Adopted, it composes 
 the country in an hour. The mists which have gathered in our laud 
 will be quickly disi)elled; business will no longer falter before uncer- 
 tainty or apprehension. If thoughts of anarchy or disorder, or a dis- 
 puted chief magistracy, have taken root, the i)assage of the bill will 
 eradicate them at once. The measure will be a herald of order and 
 cahiniess, from sea to sea: it will once again proclaim to the world 
 tliat America is great enough, and wise enough, to do all things de- 
 cently and in order. It may be denounced by partisans on the one 
 side and on the othea- ; it may be derided by the adventurous and the 
 thoughtless ; it may be treated with c(Mirageous gaiety, as it has been 
 by tlie hon<uable Senator from Pennsylvania ; it may not be presently 
 .•ipproved by all the thoughtful and the patriotic. Still I will vote 
 for it, because I believe it executes the Constitution, and because I 
 believe it for the lasting advantage of all the people and of all the 
 States, including that gTcat State whose interests and whose honor 
 are so dear to me. It may be condemned now, but time at whoso 
 great altar all i)assion,and error, and j)njudice at last must bow, will 
 test it, and I believe will vindicate it. Those who vote for it can wait. 
 Yi's, they can wait. 
 
 Senators: in a matter of duty so exalted, we may "place our bark 
 on tho highest ]>rom(mtory of the beach, and wait for the rising of the 
 tide to make it lloat " 
 
 o 
 
 LEAg'r2