was counted for seventy-two years upon that theory. If that theory was not correct, then it was unlawfully counted without authority, and for three-quarters of a century this Government proceeded illegally. Chancellor Kent stated the law on this subject as I think it has been generally understood in Congress and out of it until very recently: "The President of the Senate, on the second Wednesday in February succeeding every meeting of the electors, in the presence of both houses of Congress, opens all the certificates, and the votes are then to be counted. The Constitution does not expressly declare by whom the votes are to be counted and the result declared. In the case of questionable votes, and a closely-contested election, this power may be all-important; and I presume, in the absence of all legislative provision on the subject, that the President of the Senate counts the votes and determines the result, and that the two houses are present only as spectators, to witness the fairness and accuracy of the transaction, and to act only if no choice be made by the electors." Now, conceding as Chancellor Kent seems to do, that there may be legislation on the subject, a doctrine to which I have subscribed, yet in the absence of legislation the President of the Senate must count the votes to prevent the Government coming to a halt, and he has counted the votes for eighty-four years, at least for seventy-two, from 1789 until the time of the adoption of the twenty-second joint rule. I do not intend now to go into an argument as to the right of the President of the Senate to count this vote against the powers of Congress. I am simply stating what I have heretofore understood to be the general doctrine, that in the absence of legislation the President of the Senate must count this vote; that if now we fail to agree upon a bill, we should simply leave this question where it has been left for eighty-four years; and that the President of the Senate in counting this vote will be guilty of no greater usurpation than he has been guilty of for three-quarters of a century. We are discussing this bill in the presence of a case. We are discussing it in the presence of an actual condition of things. I shall be ANXIOUS TO HAVE A FAIR BILL ADOPTED. I was exceedingly anxious to agree with the committee in the recommendation of a fair proposition; but when we are preparing a bill in the presence of a case made up, ready to be tried, the papers all signed and in due order, I insist that it shall be a fair bill under which the condition of things shall not be unfairly changed. As I said before, I believe R. B. HAYES IS ELECTED PRESIDENT, elected upon the papers, elected under every form of law; that he ought to be inaugurated, and that he must be inaugurated unless a bill shall be passed which shall allow him to be counted out in defiance of the well-settled principles of law. I am not well enough, Mr. President, to go into this question to-day as I should like to do. I wish to say a few words in regard to this bill. If the power to count this vote is vested in the two houses, and is not in the President of the Senate, then the duty must be performed by the two houses; it cannot be delegated. This was the precise point, as I understood it, of the argument of the Senator from Vermont, because, if he the two houses under the Constitution, he were to admit that the power is vested in would be compelled to admit, good lawyer as he is, that that power cannot be delegated; but by placing it as a floating power, that is located nowhere until it is located by an act of Congress, then Congress would have the right to deposit this power with a commission. THE JUDGES TO BE POLITICAL JUDGES. The commission created is a mixed commission, partly inside and partly outside, five Senators, five Representatives, and five judges. The judges are taken, not because they are judges, not because they are members of the Supreme Court, but because they are men of eminent character who happen to occupy that position. Four of them are chosen by circuits. The Senator from Vermont hardly did himself justice on Saturday when he argued that they were chosen by circuits on account of geographical distribution. They were chosen by circuits, as I understand it, not because of geographical distribution, but because of the political antecedents of the men who preside in those circuits. When the bill, instead of naming the judges, names the circuits, it presents a harmless little sham that deceives nobody. Four judges are taken by the bill because of their political antecedents, two on each side. In other words, the judges are selected upon political grounds, equally divided, it is said, in order to make the bill a fair one. Nevertheless, selection is made in the Supreme Court on political grounds. If and I confess I looked upon that proposiwe are to deal with the Supreme Courttion with more favor than the other-I thought we ought to have taken the whole court, and not admit by any form of provision that we believed politics entered into the court; not divide it up on political grounds; not assume that the duties of that court are liable to be influenced by their political prepossessions, but take the whole court as a court. I thought that the least objectionable. It is true the other day, when there was a constitutional amendment here referring this matter to the Su COUNTING OF THE ELECTORAL VOTES. preme Court, I voted against it; but I did so chiefly because it re-enacted the electoral college and re-enacted an election of President by the House of Representatives by States. But if we are to take an outside tribunal it seemed to me to be far better that we should take the court and take it as a court, take all the judges, and not pick around them to get an equal number on political grounds. I thought that was a blow at the court and would do it more injury than any course that could be taken. They are to take a fifth. Four judges are to select a fifth. ILLEGAL MANNER OF APPOINTING THE JUDGES. Here is a very grave question presented, right at the threshold: What is the character of these commissioners? Are they officers? They are sworn; the very highest duty is imposed upon them, the decision of the greatest case that can arise under our institutions. If they are officers, are they not to be appointed as other officers under the Constitution of the United States are appointed? Can we take four men by name and authorize them to appoint the fifth and submit to this court thus ized this great case? Is it not a court to all intents and purposes? You call it a commission, but names are nothing. It is a court invested with the very highest jurisdiction to decide both law and fact, expressly charged with deciding the question, What are the powers of each or of both houses of Congress? and expressly charged with finding the fact as to who have been elected electors for President of the United States. If it is a court, should it not be organ Can you by joint resolution or by bill authorize a conference committee to pass a law and to make it binding unless it is remittees are but facilities of Congress, and versed by a majority of both houses. Comtheir action amounts to nothing unless ratified by Congress. The decision of a conference committee amounts to nothing in point of law until after both houses shall have confirmed its action; but here you create a commission partly of Senators, partly of Members, and partly of the Judges of the Supreme Court, and you pro vide that the finding of that commission shall be valid unless reversed by a majority of both houses. Here is a clear delegation of power. If it were provided that the finding of that commission should not be Congress, there would be no delegation of valid until confirmed by both houses of power. You could just as well provide that it shall be binding unless reversed by two-thirds of each House, or you could provide that it should be absolutely binding and that there shall be no appeal at all. Here you create a court and you give an appeal from this court not to a higher court known to the Constitution of the United States, but you give an appeal to the Congress of the United States, provided that if the appeal shall be sustained by both houses concurrently the decision of the court below shall be reversed. I will say one word further in regard to the bill. connection with the election of a President, It is a fundamental principle of law, in in preserving and defining the rights of the States, that the action of the States shall be the United States, or by that power, what received unquestioned by the Congress of appointed as the Constitution requires other courts to be, and if these men are ever it may be, that shall count the vote; public officers, should they not be appointed and any authority conferred upon this as officers of the United States are required commission, or that might be conferred by to be appointed? This is a contrivance, to use the very mildest words, a contrivance, a patched-up thing, five Representatives, five Senators, four judges first, and they to choose a fifth, and thus this tribunal is to be created that is to make a President of the United States. There are no analogies for it in our Constitution or in our laws or in an act of Congress upon the President of the Senate or any other agency selected to go behind the returning board of a State and count the votes, would be, in my judgment, a gross violation of the spirit and letend of Presidential elections under our syster of the Constitution, revolution, and the tem. our history. We have no tribunals made members of the Senate to this bill. I speak I wish briefly to call the attention of the up in that way. THE TRIBUNAL ILLEGAL. If we were to make this tribunal exclusively in the two houses, make it consist of Representatives and Senators entirely, and stop there, the question would then arise, can we do it? If the decision of this question belongs to the two houses, can you leave it to a few members of these two houses and agree to be bound by their decision? Can you pass a law in that way? We need a moment of the jurisdictional part, that part conferit is the vital part of the bill. ring jurisdiction upon this commission, and not deceive ourselves for about this business. We know that both parties are looking intently to that question and at that particular point. We may affect to be oblivious of it here, but we understand that the decision of this Presidential question depends absolutely upon that question, for if the principle shall stand that the action of the State authorities, those that are appointed to count the votes and to say by State laws who are elected, Rutherford B. Hayes is elected and Mr. Tilden cannot be counted in except by overturning that principle. It is all in that, and the able lawyers of the Democratic party on this floor and everywhere understand that just as well as we do. I call attention to that part of this bill which gives the jurisdiction to this tribunal : "Every objection shall be made in writing, and shall state clearly and concisely, and without argument, the ground thereof, and shall be signed by at least one Senator and one Member of the House of Representatives before the same shall be received. When all such objections so made to any certificate, vote, or paper from a State shall have been received and read, all such certificates, votes, and papers so objected to, and all papers accompanying the same, together with such objections, shall be forthwith submitted to said commission, which shall proceed to consider the same; with the same powers, if any, now possessed for that purpose by the two houses acting separately or together." I may here remark that the bill proceeds upon a theory different from that of the Senator from Vermont in his argument. He assumes that the Constitution does not locate this power anywhere, but that it is to be located by law, while this bill goes upon the hypothesis that this power is located in the two houses, and that this commission shall have what the two houses have, more or less "which shall proceed to consider the same, with the same powers, if any, now possessed for that purpose by the two houses acting separately or together, and, by a majority of votes, decide whether any and what votes from such State are the votes provided for by the Constitution of the United States, and how many and what persons were duly appointed electors in such State, and may therein take into view such petitions, depositions, and other papers, if any, as shall, by the Constitution and now existing law, be competent and pertinent in such consideration." First, they are required to find what were the constitutional votes of a State. They are required to do a thing there which in my opinion the Constitution does not authorize, whether the power to count the votes be vested in the President of the Senate or in the two houses. They are required to find, for example, under that provision whether the electors were eligible or ineligible as to their qualifications, while I maintain there is no time or place under the Constitution when the votes are counted for an inquiry of that kind. The duty is short and simple. The President of the Senate shall open the certificates in the presence of the two houses and the votes shall then be counted. There is but one thing to do and that is to count the votes. There is no time, there is no place to try the question of the eligibility of the electors. Suppose it should be said, if you please, that the President himself, the candidate, is not a citizen of the United States; that he is not eligible to be elected, and that that charge should be made when the votes are counted. The candidate takes issue; he says he is a citizen; was born in this country, or he says he is thirty-five years old. That may be denied. An issue of fact arises. Can you try that issue then? Will you count him out because you say he is not thirty-five years old when he says he is? You cannot try that question of fact then. Will you count him out because it is said he was not born in the United States? He says that he was; that there are those living who were present and can prove it. If that issue is made you cannot possibly try it at that time. And so with regard to electors. If they suggest that an elector was not eligible, that he was postmaster, if you please, he may deny the fact; he may insist that he had resigned before that time, and his resignation had been accepted. Is there any time or place there to try the issue of fact, whether he was eligible or not; whether he was postmaster or not; whether he was qualified or not to become an elector? No, Mr. President, whoever may count the votes, there is no time or place when you count the votes to try that question. The two houses are to come together. The President of the Senate is to open all the certificates. That does not mean every kind of certificate that may be placed in his possession. It does not mean any At that paper that may purport to be a certificate, but he is to open all the certificates from the electors of the several States and the votes shall then be counted, the votes in those certificates, be they good, bad, or indifferent, be they for an alien, or be they for a citizen of the United States. time and at that place there is but one thing to do, and that is to count the votes. It may be said that the candidate is not qualified to be elected; it may be said that the elector was not qualified to be an elector, but you cannot try that issue of fact then and there; there is but one thing to do, that is to count the votes. The Presi dent of the Senate has his duty, and that is to open the certificate that comes from the electors of the States. He is not bound to open certificates from pretended au thority, from outsiders, from persons unknown officially. I am going on a little further, Mr. President. NO POWER TO GO BEHIND THE RETURNS FROM THE STATES. This bill requires this commission to find the facts, whether these electors were duly appointed. We will just put the word "elected" instead of "appointed," for in this connection it means the same thing. They are required to find were these electors duly appointed? They are not required to find whether they have been duly certified by the State authorities as having been elected. No, sir; but they are required to find the fact were they duly appointed or elected? If it had said that this commission shall find how many electors there were, and whether they were duly certified as having been elected by the State authorities or the returning board created for that purpose, we could understand that; but they are required to find the facts as to who was elected, and thus, as I apprehend this bill, they are required to go behind the returns from the States. If it was intended that they should find who had been certified by the States as having been appointed or elected, that would be simple and easily understood; but the bill quietly and innocently requires the commission to find the fact as to who was duly elected. Then it provides that for that purpose they "May therein take into view such petitions, depositions, and other papers, if any, as shall, by the Constitution and now existing law, be competent and pertinent in such consideration." In finding the fact as to who was duly elected, they are authorized to take into consideration petitions, unsworn evidence, depositions, papers of all kinds, reports, everything that may be put in for the information of Congress. If these things are not to be considered in determining who has been elected, then the reference is useless. If this commission is to be controlled by the State authorities, by those who have been certified as elected by the returning officers of the several States, then they have no occasion to look at these petitions, memorials and reports. The bill invites them to look at these papers, invites them for a purpose, and there can be no use in looking at them if the other principle of law is to be observed, that they are to be governed by the returns made by the officers of the several States. Now, Mr. President, I think I do the intelligence of these distinguished democratic Senators but justice when I say that they would not go for this bill except that it gave them a chance for the only thing that can count Mr. Tilden in, and that is to go behind the returns. Outside of that he has no chance, no possible hope; and that these distinguished and eminent lawyers go for a bill which at the very beginning cuts off and shuts out this their only hope, I must be excused for saying that I do not believe it. THE VOTE. The debate was continued until Thursday morning, January 25th, when, after a night's session, a vote was taken with the following result: YEAS.-Alcorn, Allison, Barnum, Bayard, Bogy, Booth, Boutwell, Burnside, Chaffee, Christiancy, Cockrell, Conkling, Cooper, Cragin, Davis, Dawes, Dennis, Edmunds, Frelinghuysen, Goldthwaite, Gordon, Howe, Johnston, Jones of Florida, Jones of Nevada, Kelly, Kernan, McCreery, McDonald, McMillan, Maxey, Merrimon, Morrill, Price, Randolph, Ransom, Robertson, Saulsbury, Sharon, Stevenson, Teller, Thurman, Wallace. Whyte, Windom, Withers, Wright-Total, 47. NAYS.-Blaine, Bruce, Cameron of Pennsylvania, Cameron of Wisconsin, Clayton, Conover, Dorsey, Eaton, Hamilton, Hamlin, Ingalls, Mitchell, Morton, Patterson, Sargent, Sherman, West-Total, 17. THE WORK OF THE FORTY-FOURTH CONGRESS. THE RETURN. vestigating Committee, sent to Louisiana to ferret out the alleged election frauds of the Republicans, and who was then anxious to compel certain parties to break the seal of secrecy and give up papers, telegrams, and documents, which it was hoped by the Democracy would be damaging to the Republican party. Hence, the machinery of Congress was kept going from time to time through the holidays, and Speaker Randall stood by the bellows, occasionally forcing a puff on the fire to keep Congress did not yield the time so fully during the holiday season, as it has done in former years. There was not really what may be termed a substantial vacation, as the two houses successively adjourned over the three customary days to suit their own convenience. These adjournments continued so that in case of emergency Congress might immediately convene. The principal reason, however, seems to have arisen from the request of Mr. Morrison, the Democratic chairman of the House In- | it from going entirely out. At last, how ever, the Member Bay of him bad gone away — spine of the pable emergency, came back to their work, and aboo Wednesday or Thursday, Jacky th. 1877, the Congress had settled down to steady business for the balance of the session. BOTTINE BUSINESS. leace in postal and other arrangements is still in progress. A 3 of some importance touching a claim for land in favor of “The St. James Mission" in Washington terri tory has been passed in the House of Rep resentatives. These, with other minor malters in the regular order of legislative bushness comprise about all that has been done by Congress since the holidays. RECUSANT WITNESSES. An important question has been raised During the laST month the morning bour in both houses has been spent in presenting and briefly considering a great variety of memorials, resolutions, and bills proposed or reported, which are referred in the House upon the refusal of Messrs. to their appropriate committees or other-Barnes and Orton, officers of the Western wise disposed of. Private bills have, however, received very little attention. The lobby men and women, though in large numbers hovering about Congress, have not been able to make much progress with their various schemes for plundering the public treasury, although it would appear that the rigid virtue of retrenchment and economy displayed by the Democratie House last year has perceptibly relaxed since the event of November last. Union Telegraph Company, to produce the alleged Republican telegrams sent southward since the November election. After much contlier and opposition the affair has ended by the submission of those two gentlemen to the will of the Democratio majority of the House. This will open a wide field of inquiry and create a demand for the production of all the Democratie telegrams sent over the country during the same period. The regular appropriation bills are only! The Democratie majority of the House advancing at a snail's pace through their have also insisted that the members of the customary long and circuitous legislative returning board of the State of Louisiana ! route, none of them having yet reached are in contempt of the House for refusing the end of the journey and entered into a, to produce, on the call of Mr. Morrison, condition of law. The affairs of the Dis- chairman of the House investigating comtrict have received some attention. Mat- ¦ mittee in Louisiana, all their documents, ters pertaining to the pavement of Penn-papers, &e., relating to the late Presidential sylvania avenue, to Glenwood cemetery, to ¦ election in that State; and two members of an appropriation of $20,000 for the relief of the poor, to a form of government for the District, to a reform school for girls, and to the present organization of the Police Commissioners and the police force have claimed the attention of Congress. The Silver Commission, authorized at the last session of Congress, are still at work col‐ | lecting and collating materials for their report. the said board being at the Federal capital have been arrested and brought to the bar of the House for this alleged contempt. The matter is, however, at this writing, left undecided. Meanwhile the elections committee of the House with Mr. David Dudley Field, a New York lawyer and counsel for the robber Tweed, but now a member of the House and of the committee, for chief manager, have been prying into the operations of the national and congressional executive Republican committees, and their com The rules of the Senate, which have for the last two years been under revision at the hands of the committee of which Senator Ferry of Michigan and President pro tem. of the Senate is chairman, have at length beenmunications to the Republicans in South adopted, and a very great and good work has thus been accomplished. The action of Congress on the broad question of the Pacific railroad acts, which looks to the use of these important lines of communication by the Government for the public conven Carolina, Florida, and elsewhere to see if something cannot be unearthed to the scandal of the Republican party. But thus far all these herculean efforts have proved utterly unsatisfactory to the democracy. |