PREFACE (continued 7)

The gentleman commenced his strictures with the philosophic observation, that it was the fate of mankind to hold different opinions as to the form of government which was preferable; that some were attached to the monarchical, while others thought the republican more eligible. This, as an abstract remark, is certainly true, and could have furnished no ground of offense, if it had not evidently appeared that an allusion was designed to be made to the parties in this country. Does the gentleman suppose that we have a less lively recollection than himself, of the oath which we have taken to support the constitution; that we are less sensible of the spirit of our government, or less devoted to the wishes of our constituents? Whatever impression it might be the intention of the gentleman to make, he does not believe that there exists in the country an anti-republican party. He will not venture to assert such an opinion on the floor of this House. That there may be a few individuals having a preference for monarchy is not improbable; but will the gentleman from Virginia, or any other gentleman, affirm in his place, that there is a party in the country who wish to establish monarchy? Insinuations of this sort belong not to the legislature of the Union. Their place is an election ground, or an alehouse. Within these walls they are lost; abroad, they have had an effect, and I fear are still capable of abusing popular credulity.

We were next told of the parties which have existed, divided by the opposite views of promoting executive power and guarding the rights of the people. The gentleman did not tell us in plain language, but he wished it to be understood, that he and his friends were the guardians of the people's rights, and that we were the advocates of executive power.

I know that this is the distinction of party which some gentlemen have been anxious to establish; but it is not the ground on which we divide. I am satisfied with the constitutional powers of the executive, and never wished nor attempted to increase them; and I do not believe, that gentlemen on the other side of the House ever had a serious apprehension of danger from an increase of executive authority. No, sir, our views, as to the powers which do and ought to belong to the general and State governments, are the true sources of our divisions. I co-operate with the party to which I am attached, because I believe their true object and end is an honest and efficient support of the general government, in the exercise of the legitimate powers of the constitution.

I pray to God I may be mistaken in the opinion I entertain as to the designs of gentlemen to whom I am opposed. Those designs I believe hostile to the powers of this government. State pride extinguishes a national sentiment. Whatever power is taken from this government is given to the States.

The ruins of this government aggrandize the States. There are States which are too proud to be controlled; whose sense of greatness and resource renders them indifferent to our protection, and induces a belief that if no general government existed, their influence would be more extensive, and their importance more conspicuous. There are gentlemen who make no secret of an extreme point of depression, to which the government is to be sunk. To that point we are rapidly progressing. But I would beg gentlemen to remember that human affairs are not to be arrested in their course, at artificial points. The impulse now given may be accelerated by causes at present out of view. And when those, who now design well, wish to stop, they may find their powers unable to resist the torrent. It is not true, that we ever wished to give a dangerous strength to executive power. While the government was in our hands, it was our duty to maintain its constitutional balance, by preserving the energies of each branch. There never was an attempt to vary the relation of its powers. The struggle was to maintain the constitutional powers of the executive. The wild principles of French liberty were scattered through the country. We had our Jacobins and disorganizes. They saw no difference between a king and a president, and as the people of France had put down their King, they thought the people of America ought to put down their President. They, who considered the constitution as securing all the principles of rational and practicable liberty, who were unwilling to embark upon the tempestuous sea of revolution in pursuit of visionary schemes, were denounced as monarchists. A line was drawn between the government and the people, and the friends of the government were marked as the enemies of the people. I hope, however, that the government and the people are now the same; and I pray to God, that what has been frequently remarked, may not, in this case, be discovered to be true that they, who have the name of the people the most often in their mouths, have their true interests the most seldom at their hearts.

The honorable gentleman from Virginia wandered to the very confines of the federal administration, in search of materials the most inflammable and most capable of kindling the passions of his party. …

I did suppose, sir, that this business was at an end; and I did imagine, that as gentlemen had accomplished their object, they would have been satisfied. But as the subject is again renewed, we must be allowed to justify our conduct. I know not what the gentleman calls an expression of the public will. There were two candidates for the office of President, who were presented to the House of Representatives with equal suffrages. The constitution gave us the right and made it our duty to elect that one of the two whom we thought preferable. A public man is to notice the public will as constitutionally expressed. The gentleman from Virginia, and many others, may have had their preference; but that preference of the public will not appear by its constitutional expression. Sir, I am not certain that either of those candidates had a majority of the country in his favor. Excluding the State of South Carolina, the country was equally divided. We know that parties in that State were nearly equally balanced, and the claims of both the candidates were supported by no other scrutiny into the public will than our official return of votes. Those votes are very imperfect evidence of the true will of a majority of the nation. They resulted from political intrigue and artificial arrangement.

When we look at the votes, we must suppose that every man in Virginia voted the same way. These votes are received as a correct expression of the public will. And yet we know that if the votes of that State were apportioned according to the several voices of the people, that at least seven out of twenty-one would have been opposed to the successful candidate. It was the suppression of the will of one-third of Virginia, which enables gentlemen now to say that the present chief magistrate is the man of the people. I consider that as the public will, which is expressed by constitutional organs. To that will I bow and submit. The public will, thus manifested, gave to the House of Representatives the choice of the two men for President. Neither of them was the man whom I wished to make President; but my election was confined by the constitution to one of the two, and I gave my vote to the one whom I thought was the greater and better man. That vote I repeated, and in that vote I should have persisted, had I not been driven from it by imperious necessity. The prospect ceased of the vote being effectual, and the alternative only remained of taking one man for President, or having no President at all. I chose, as I then thought, the lesser evil.

From the scene in this House, the gentleman carried us to one in the Senate. I should blush, sir, for the honor of the country, could I suppose that the law, designed to be repealed, owed its support in that body to the motives which have been indicated. The charge designed to be conveyed, not only deeply implicates the integrity of individuals of the Senate, but of the person who was then the chief magistrate. The gentleman, going beyond all precedent, has mentioned the names of members of that body, to whom commissions issued for offices not created by the bill before them, but which that bill, by the promotions it afforded, was likely to render vacant. He has considered the scandal of the transaction as aggravated by the issuing of commissions for offices not actually vacant, upon the bare presumption that they would become vacant by the incumbents accepting commissions for higher offices which were issued in their favor. The gentleman has particularly dwelt upon the indecent appearance of the business, from two commissions being held by different persons at the same time for the same office.

I beg that it will be understood that I mean to give no opinion as to the regularity of granting a commission for a judicial office, upon the probability of a vacancy before it is actually vacant; but I shall be allowed to say that so much doubt attends the point, that an innocent mistake might be made on the subject. I believe, sir, it has been the practice to consider the acceptance of an office as relating to the date of the commission. The officer is allowed his salary from that date, upon the principle that the commission is a grant of the office, and the title commences with the date of the grant. This principle is certainly liable to abuse, but where there was a suspicion of abuse I presume the government would depart from it. Admitting the office to pass by the commission, and the acceptance to relate to its date, it then does not appear very incorrect, in the case of a commission for the office of a circuit judge, granted to a district judge, as the acceptance of the commission for the former office relates to the date of the commission, to consider the latter office as vacant from the same time. The offices are incompatible. You cannot suppose the same person in both offices at the same time. From the moment, therefore, that you consider the office of circuit judge as filled by a person who holds the commission of district judge, you must consider the office of district judge as vacated. The grant is contingent. If the contingency happen, the office vests from the date of the commission; if the contingency does not happen, the grant is void. If this reasoning be sound, it was not irregular, in the late administration, after granting a commission to a district judge, for the place of a circuit judge, to make a grant of the office of the district judge, upon the contingency of his accepting the office of circuit judge.

The legislative power of the government is not absolute, but limited. If it be doubtful whether the legislature can do what the constitution does not explicitly authorize, yet there can be no question, that they cannot do what the constitution expressly prohibits. To maintain, therefore, the constitution, the judges are a check upon the legislature. The doctrine, I know, is denied, and it is, therefore, incumbent upon me to show that it is sound. It was once thought by gentlemen, who now deny the principle, that the safety of the citizen and of the States rested upon the power of the judges to declare an unconstitutional law void. How vain is a paper restriction if it confers neither power nor right. Of what importance is it to say, Congress are prohibited from doing certain acts, if no legitimate authority exists in the country to decide whether an act done is a prohibited act? Do gentlemen perceive the consequences which would follow from establishing the principle, that Congress have the exclusive right to decide upon their own powers? This principle admitted, does any constitution remain? Does not the power of the legislature become absolute and omnipotent? Can you talk to them of transgressing their powers, when no one has a right to judge of those powers but themselves? They do what is not authorized, they do what is inhibited, nay, at every step, they trample the constitution under foot; yet their acts are lawful and binding, and it is treason to resist them. How ill, sir, do the doctrines and professions of these gentlemen agree. They tell us they are friendly to the existence of the States; that they are the friends of federative, but the enemies of a consolidated general government, and yet, sir, to accomplish a paltry object, they are willing to settle a principle which, beyond all doubt, would eventually plant a consolidated government, with unlimited power, upon the ruins of the State governments.

Nothing can be more absurd than to contend that there is a practical restraint upon a political body, who are answerable to none but themselves for the violation of the restraint, and who can derive, from the very act of violation, undeniable justification of their conduct.

If, Mr. Chairman, you mean to have a constitution, you must discover a power to which the acknowledged right is attached of pronouncing the invalidity of the acts of the legislature, which contravened the instrument.

Does the power reside in the States? Has the legislature of a State a right to declare an act of Congress void? This would be erring upon the opposite extreme. It would be placing the general government at the feet of the State governments. It would be allowing one member of the Union to control all the rest. It would inevitably lead to civil dissension and a dissolution of the general government. Will it be pretended that the State courts have the exclusive right of deciding upon the validity of our laws?

I admit they have the right to declare an act of Congress void. But this right they enjoy in practice, and it ever essentially must exist, subject to the revision and control of the courts of the United States. If the State courts definitely possessed the right of declaring the invalidity of the laws of this government, it would bring us in subjection to the States. The judges of those courts, being bound by the laws of the State, if a State declared an act of Congress unconstitutional, the law of the State would oblige its courts to determine the law invalid. This principle would also destroy the uniformity of obligation upon all the States, which should attend every law of this government. If a law were declared void in one State, it would exempt the citizens of that State from its operation, whilst obedience was yielded to it in the other States. I go further, and say, if the States or State courts had a final power of annulling the acts of this government, its miserable and precarious existence would not be worth the trouble of a moment to preserve. It would endure but a short time, as a subject of derision, and, wasting into an empty shadow, would quickly vanish from our sight.

Let me now ask, if the power to decide upon the validity of our laws resides with the people. Gentlemen cannot deny this right to the people. I admit they possess it. But if, at the same time, it does not belong to the courts of the United States, where does it lead the people? It leads them to the gallows. Let us suppose that Congress, forgetful of the limits of their authority, pass an unconstitutional law. They lay a direct tax upon one State and impose none upon the others. The people of the State taxed contest the validity of the law. They forcibly resist its execution. They are brought by the executive authority before the courts upon charges of treason. The law is unconstitutional, the people have done right, but the court are bound by the law, and obliged to pronounce upon them the sentence which it inflicts. Deny to the courts of the United States the power of judging upon the constitutionality of our laws, and it is vain to talk of its existing elsewhere. The infractors of the laws are brought before these courts, and if the courts are implicitly bound, the invalidity of the laws can be no defense. There is, however, Mr. Chairman, still a stronger ground of argument upon this subject. I shall select one or two cases to illustrate it. Congress are prohibited from passing a bill of attainder; it is also declared in the constitution, that "no attainder of treason shall work corruption of blood or forfeiture, except during the life of the party attainted." Let us suppose that Congress pass a bill of attainder, or they enact, that any one attainted of treason shall forfeit, to the use of the United States, all the estate which he held in any lands or tenements.

The party attainted is seized and brought before a federal court, and an award of execution passed against him. He opens the constitution and points to this line, "no bill of attainder or ex post facto law shall be passed." The attorney for the United States reads the bill of attainder.

The courts are bound to decide, but they have only the alternative of pronouncing the law or the constitution invalid. It is left to them only to say that the law vacates the constitution, or the constitution voids the law. So, in the other case stated, the heir after the death of his ancestor, brings his ejectment in one of the courts of the United States to recover his inheritance. The law by which it is confiscated is shown. The constitution gave no power to pass such a law. On the contrary, it expressly denied it to the government. The title of the heir is rested on the constitution, the title of the government on the law. The effect of one destroys the effect of the other; the court must determine which is effectual.

There are many other cases, Mr. Chairman, of a similar nature to which I might allude. There is the case of the privilege of habeas corpus, which cannot be suspended but in times of rebellion or invasion. Suppose a law prohibiting the issue of the writ at a moment of profound peace! If, in such case, the writ were demanded of a court, could they say, it is true the legislature were restrained from passing the law suspending the privilege of this writ, at such a time as that which now exists, but their mighty power has broken the bonds of the constitution, and fettered the authority of the court? I am not, sir, disposed to vaunt, but standing on this ground, I throw the gauntlet to any champion upon the other side. I call upon them to maintain, that, in a collision between a law and the constitution, the judges are bound to support the law, and annul the constitution. Can the gentlemen relieve themselves from this dilemma? Will they say, though a judge has no power to pronounce a law void, he has a power to declare the constitution invalid?

The doctrine for which I am contending, is not only clearly inferable from the plain language of the constitution, but by law has been expressly declared and established in practice since the existence of the government.

The second section of the third article of the constitution expressly extends the judicial power to all cases arising under the constitution, laws, etc. The provision in the second clause of the sixth article leaves nothing to doubt. "This constitution and the laws of the United States, which shall be made in pursuance thereof etc., shall be the supreme law of the land." The constitution is absolutely the supreme law. Not so the acts of the legislature! Such only are the law of the land as are made in pursuance of the constitution.

I beg the indulgence of the committee one moment, while I read the following provision from the twenty-fifth section of the judicial act of the year 1789: "A final judgment or decree in any suit in the highest court of law or equity of a state, in which a decision in the suit could be had, where is drawn in question the validity of a treaty or statute of, or an authority exercised under, the United States, and the decision is against their validity, etc., may be re-examined and reversed or affirmed in the Supreme Court of the United States, upon a writ of error." Thus, as early as the year 1789, among the first acts of the government, the legislature explicitly recognized the right of a State court to declare a treaty, a statute, and an authority exercised under the United States, void, subject to the revision of the Supreme Court of the United States; and it has expressly given the final power to the Supreme Court to affirm a judgment which is against the validity, either of a treaty, statute, or an authority of the government.

I humbly trust, Mr. Chairman, that I have given abundant proofs from the nature of our government, from the language of the constitution, and from legislative acknowledgment, that the judges of our courts have the power to judge and determine upon the constitutionality of our laws.

Let me now suppose that, in our frame of government, the judges are a check upon the legislature; that the constitution is deposited in their keeping. Will you say afterwards that their existence depends upon the legislature? That the body whom they are to check has the power to destroy them? Will you say that the constitution may be taken out of their hands by a power the most to be distrusted, because the only power which could violate it with impunity? Can anything be more absurd than to admit that the judges are a check upon the legislature, and yet to contend that they exist at the will of the legislature? A check must necessarily imply a power commensurate to its end. The political body, designed to check another, must be independent of it, otherwise there can be no check. What check can there be when the power designed to be checked can annihilate the body which is to restrain?

I go further, Mr. Chairman, and take a stronger ground. I say, in the nature of things, the dependence of the judges upon the legislature, and their right to declare the acts of the legislature void, are repugnant, and cannot exist together. The doctrine, sir, supposes two rights—first, the right of the legislature to destroy the office of the judge, and the right of the judge to vacate the act of the legislature. You have a right to abolish by a law the offices of the judges of the circuit courts; they have a right to declare the law void. It unavoidably follows, in the exercise of these rights, either that you destroy their rights, or that they destroy yours. This doctrine is not a harmless absurdity, it is a most dangerous heresy. It is a doctrine which cannot be practiced without producing not discord only, but bloodshed. If you pass the bill upon your table, the judges have a constitutional right to declare it void. I hope they will have courage to exercise that right; and if, sir, I am called upon to take my side, standing acquitted in ray conscience, and before my God, of all motives but the support of the constitution of my country, I shall not tremble at the consequences.

The constitution may have its enemies, but I know that it has also its friends. I beg gentlemen to pause, before they take this rash step. There are many, very many, who believe, if you strike this blow, you inflict a mortal wound on the constitution. There are many now willing to spill their blood to defend that constitution. Are gentlemen disposed to risk the consequences? Sir, I mean no threats, I have no expectation of appalling the stout hearts of my adversaries; but if gentlemen are regardless of themselves, let them consider their wives and children, their neighbors and their friends. Will they risk civil dissension, will they hazard the welfare, will they jeopardize the peace of the country, to save a paltry sum of money, less than thirty thousand dollars?

Mr. Chairman, I am confident that the friends of this measure are not apprised of the nature of its operation, nor sensible of the mischievous consequences which are likely to attend it. Sir, the morals of your people, the peace of the country, the stability of the government, rest upon the maintenance of the independence of the judiciary. It is not of half the importance in England, that the judges should be independent of the crown, as it is with us that they should be independent of the legislature. Am I asked, would you render the judges superior to the legislature? I answer, no, but co-ordinate. Would you render them independent of the legislature? I answer, yes, independent of every power on earth, while they behave themselves well. The essential interests, the permanent welfare of society, require this independence; not, sir, on account of the judge; that is a small consideration, but on account of those between whom he is to decide. You calculate on the weaknesses of human nature, and you suffer the judge to be dependent on no one, lest he should be partial to those on whom he depends. Justice does not exist where partiality prevails. A dependent judge cannot be impartial. Independence is, therefore, essential to the purity of your judicial tribunals.

Let it be remembered, that no power is so sensibly felt by society, as that of the judiciary. The life and property of every man is liable to be in the hands of the judges. Is it not our great interest to place our judges upon such high ground that no fear can intimidate, no hope seduce them? The present measure humbles them in the dust, it prostrates them at the feet of faction, it renders them the tools of every dominant party. It is this effect which I deprecate, it is this consequence which I deeply deplore. What does reason, what does argument avail, when party spirit presides? Subject your bench to the influence of this spirit, and justice bids a final adieu to your tribunals. We are asked, sir, if the judges are to be independent of the people? The question presents a false and delusive view. We are all the people. We are, and as long as we enjoy our freedom, we shall be divided into parties. The true question is, shall the judiciary be permanent, or fluctuate with the tide of public opinion? I beg, I implore gentlemen to consider the magnitude and value of the principle which they are about to annihilate. If your judges are independent of political changes, they may have their preferences, but they will not enter into the spirit of party. But let their existence depend upon the support of the power of a certain set of men, and they cannot be impartial. Justice will be trodden under foot. Your courts will lose all public confidence and respect.

The judges will be supported by their partisans, who, in their turn, will expect impunity for the wrongs and violence they commit. The spirit of party will be inflamed to madness: and the moment is not far off, when this fair country is to be desolated by a civil war.

Do not say that you render the judges dependent only on the people You make them dependent on your President. This is his measure. The same tide of public opinion which changes a President will change the majorities in the branches of the legislature The legislature will be the instrument of his ambition, and he will have the courts as the instruments of his vengeance. He uses the legislature to remove the judges, that he may appoint creatures of his own. In effect, the powers of the government will be concentrated in the hands of one man, who will dare to act with more boldness, because he will be sheltered from responsibility. The independence of the judiciary was the felicity of our constitution. It was this principle which was to curb the fury of party on sudden changes. The first movements of power gained by a struggle are the most vindictive and intemperate. Raised above the storm it was the judiciary which was to control the fiery zeal, and to quell the fierce passions of a victorious faction.

We are standing on the brink of that revolutionary torrent, which deluged in blood one of the fairest countries of Europe.

France had her national assembly, more numerous than, and equally popular with, our own. She had her tribunals of justice, and her juries. But the legislature and her courts were but the instruments of her destruction. Acts of proscription and sentences of banishment and death were passed in the cabinet of a tyrant. Prostrate your judges at the feet of party, and you break down the mounds which defend you from this torrent.

I am done. I should have thanked my God for greater power to resist a measure so destructive to the peace and happiness of the country. My feeble efforts can avail nothing. But it was my duty to make them. The meditated blow is mortal, and from the moment it is struck, we may bid a final adieu to the constitution.

COMMERCE AND NAVAL POWER (United States Senate, February 12th, 1810)

God has decided that the people of this country should be commercial people. You read that decree in the seacoast of seventeen hundred miles which he has given you; in the numerous navigable waters which penetrate the interior of the country; in the various ports and harbors scattered alone your shores; in your fisheries; in the redundant productions of your soil; and, more than all, in the enterprising and adventurous spirit of your people. It is no more a question whether the people of this country shall be allowed to plough the ocean, than it is whether they shall be permitted to plough the land. It is not in the power of this government, nor would it be if it were as strong as the most despotic upon the earth, to subdue the commercial spirit, or to destroy the commercial habits of the country. Young as we are, our tonnage and commerce surpass those of every nation upon the globe but one, and if not wasted by the deprivations to which they were exposed by their defenseless situation, and the more ruinous restrictions to which this government subjected them, it would require not many more years to have made them the greatest in the world. Is this immense wealth always to be exposed as a prey to the rapacity of freebooters? Why will you protect your citizens and their property upon land, and leave them defenseless upon the ocean? As your mercantile property increases, the prize becomes more tempting to the cupidity of foreign nations. In the course of things, the ruins and aggressions which you have experienced will multiply, nor will they be restrained while we have no appearance of a naval force.

I have always been in favor of a naval establishment—not from the unworthy motives attributed by the gentleman from Georgia to a former administration, in order to increase patronage, but from a profound conviction that the safety of the Union and the prosperity of the nation depended greatly upon its commerce, which never could be securely enjoyed without the protection of naval power. I offer, sir, abundant proof for the satisfaction of the liberal mind of that gentleman, that patronage was not formerly a motive in voting an increase in the navy, when I give now the same vote, when surely I and my friends have nothing to hope, and for myself, I thank God, nothing to wish from the patronage it may confer.

You must and will have a navy; but it is not to be created in a day, nor is it to be expected that, in its infancy, it will be able to cope, foot to foot with the full-grown vigor of the navy of England. But we are even now capable of maintaining a naval force formidable enough to threaten the British commerce, and to render this nation an object of more respect and consideration.

In another point of view, the protection of commerce has become more indispensable. The discovery is completely made, that it is from commerce that the revenue is to be drawn which is to support this government, A direct tax, a stamp act, a carriage tax, and an excise, have been tried; and I believe, sir, after the lesson which experience has given on the subject, no set of men in power will ever repeat them again, for all they are likely to produce. The burden must be pretty light upon the people of this country, or the rider is in great danger. You may be allowed to sell your back lands for some time longer, but the permanent fund for the support of this government is the imports.

If the people were willing to part with commerce, can the government dispense with it? But when it belongs equally to the interest of the people and of the government to encourage and protect it, will you not spare a few of those dollars which it brings into your treasury, to defend and protect it?

In relation to the increase of a permanent military force, a free people cannot cherish too great a jealousy. An army may wrest the power from the hands of the people, and deprive them of their liberty. It becomes us, therefore, to be extremely cautious how we augment it. But a navy of any magnitude can never threaten us with the same danger. Upon land, at this time, we have nothing—and probably, at any future time, we shall have but little—to fear from any foreign power. It is upon the ocean we meet them; it is there our collisions arise; it is there we are most feeble, most vulnerable, and most exposed; it is there by consequence, that our safety and prosperity must require an augmented force.

THOMAS F. BAYARD (1828-1898)

In 1876, when the country was in imminent danger of the renewal of civil war as a result of the contested presidential election, the conservative element of the Democratic party, advised by Mr. Tilden himself, determined to avoid anything which might result in extreme measures. The masses of the people were excited as they had not been since the close of the Civil War, and the great majority of the Democrats of the country were undoubtedly opposed to making concessions. Thomas F. Bayard, who took the lead in the Senate as the representative of the moderate policy favored by Mr. Tilden, met the reproaches sure to be visited in such cases on the peacemaker. Nevertheless, he advocated the Electoral Commission as a method of settling the contest, and his speech in supporting it, without doubt one of the best as it was certainly the most important of his life, paved the way for the final adoption of the bill. It is no more than justice to say that the speech is worthy of the dignity of that great occasion.

Mr. Bayard inherited the equable temperament shown by his father and his grandfather. He was a warm-hearted man with a long memory for services done him, but he had a faculty of containing himself which few men exercise to the degree that he exercised it habitually, both in his public and private life. The habit was so strong, in fact, that he indulged only on rare occasions that emotion which is necessary for the highest success as an orator. The calmness of his thought shows itself in logic which, while it may invite confidence, does not compel admiration. When he is moved, however, the freedom of his utterances from exaggeration and from that tendency to rant which mars many orations makes such periods as those with which he closes his speech on the Electoral Bill models of expression for all who wish to realize the highest possibilities of cumulative force.

The son of one United States Senator, James A. Bayard, of Delaware, and the grandson of another, Mr. Bayard represented well the family tradition of integrity. Born in 1828, he succeeded to his father's place in the Senate when forty-one years of age, and remained in the public service until within a short time of his death. He was Secretary of State under the first Cleveland administration and ambassador to England under the second. In the convention which nominated Mr. Cleveland in 1884, Mr. Bayard, who had been strongly supported for the Democratic presidential nomination in 1880, was so close to the presidency at the beginning of the balloting that his managers confidently expected his success. He became much attached to President Cleveland, and in 1896 he took a course on the financial issue then uppermost, which alienated many of his friends, as far as friends could be alienated by the political action of a man whose public and private life were so full of dignity, simplicity, and the qualities which result from habitual good faith. Mr. Bayard survived almost into the twentieth century as a last representative of the colonial gentlemen who debated the Federal Constitution. Supposed to be cold and unapproachable, he was really warm in his friendships, with a memory which never allowed an act of service done him to escape it. Few better men have had anything to do with the politics of the second half of the century. He died in 1898.

W. V. B.

A PLEA FOR CONCILIATION IN 1876

("Counting the Electoral Votes," United States Senate, January 24th, 1877)

Mr. President, I might have been content as a friend of this measure to allow it to go before the Senate and the country unaccompanied by any remarks of mine had it not been the pleasure of the Senate to assign me as one of the minority in this Chamber to a place upon the select committee appointed for the purpose of reporting a bill intended to meet the exigencies of the hour in relation to the electoral votes. There is for every man in a matter of such gravity his own measure of responsibility, and that measure I desire to assume. Nothing less important than the decision, into whose hands the entire executive power of this government shall be vested in the next four years, is embraced in the provisions of this bill. The election for President and Vice-President has been held, but as to the results of that election the two great political parties of the country stand opposed in serious controversy. Each party claims success for its candidate and insists that he and he alone shall be declared by the two houses of Congress entitled to exercise the executive power of this government for the next four years. The canvass was prolonged and unprecedented in its excitement and even bitterness. The period of advocacy of either candidate has passed, and the time for judgment has almost come. How shall we who purpose to make laws for others do better than to exhibit our own reverence for law and set the example here of subordination to the spirit of law?

It cannot be disguised that an issue has been sought, if not actually raised, in this country, between a settlement of this great question by sheer force and arbitrary exercise of power or by the peaceful, orderly, permanent methods of law and reason. Ours is, as we are wont to boast, a government of laws, and not of will; and we must not permit it to pass away from us by changing its nature.

"O, yet a nobler task awaits thy hand, For what can war but endless war still breed?"

By this measure now before the Senate it is proposed to have a peaceful conquest over partisan animosity and lawless action, to procure a settlement grounded on reason and justice, and not upon force. Therefore, it is meant to lift this great question of determining who has been lawfully elected President and Vice-President of these United States out of the possibility of popular broils and tumult, and elevate it with all dignity to the higher atmosphere of legal and judicial decision. In such a spirit I desire to approach the consideration of the subject and shall seek to deal with it at least worthily, with a sense of public duty unobstructed, I trust, by prejudice or party animosity. The truth of Lord Bacon's aphorism that "great empire and little minds go ill together," should warn us now against the obtrusion of narrow or technical views in adjusting such a question and at such a time in our country's history.

Mr. President, from the very commencement of the attempt to form the government under which we live, the apportionment of power in the executive branch and the means of choosing the chief magistrate have been the subject of the greatest difficulty. Those who founded this government and preceded us in its control had felt the hand of kingly power, and it was from the abuse of executive power that they dreaded the worst results. Therefore it was that when the Constitution came to be framed that was the point upon which they met and upon which they parted, less able to agree than upon almost all others combined. A glance at the history of the convention that met at Philadelphia on the fourteenth of May, 1787, but did not organize until the twenty-fifth day of the same month, will show that three days after the convention assembled two plans of a Constitution were presented, respectively, by Mr. Edmund Randolph, of Virginia, and Mr. Charles Pinckney, of South Carolina. The first proposed the election of the executive by the legislature, as the two houses were then termed, for a term of seven years, with ineligibility for re-election. The other proposed an election, but left the power to elect or the term of office in blank. Both of these features in the schemes proposed came up early for consideration, and, as I have said before, as the grave and able minds of that day approached this subject they were unable to agree, and accordingly, from time to time, the question was postponed and no advance whatever made in the settlement of the question. Indeed, so vital and wide was the difference that each attempt made during the course of the five months in which that convention was assembled only seemed to result in renewed failure. So it stood until the fourth day of September had arrived. The labors of the convention by that time had resulted in the framing of a Constitution, wise and good and fairly balanced, calculated to preserve power sufficient in the government, and yet leaving that individual freedom and liberty essential for the protection of the States and their citizens. Then it was that this question, so long postponed, came up for consideration and had to be decided. As it was decided then, it appears in the Constitution as submitted to the States in 1787; but an amendment of the second article was proposed in 1804, which, meeting the approval of the States, became part of the Constitution.

I must be pardoned if I repeat something of what has preceded in this debate, by way of citation from the Constitution of the United States, in order that we may find there our warrant for the present measure. There were difficulties of which these fathers of our government were thoroughly conscious. The very difficulties that surround the question to-day are suggested in the debates of 1800, in which the history of double returns is foretold by Mr. Pinckney in his objections to the measure then before the Senate. The very title of that act, "A Bill Prescribing a Mode of Deciding Disputed Elections of President and Vice-President of the United States," will show the difficulties which they then perceived and of which they felt the future was to be so full. They made the attempt in 1800 to meet those difficulties. They did not succeed. Again and again the question came before them. In 1824 a second attempt was made at legislation. It met the approval of the Senate. It seemed to meet the approval of the Committee on the Judiciary of the House, by whom it was reported without amendment, but never was acted upon in that body, and failed to become a law. This all shows to us that there has been a postponement from generation to generation of a subject of great difficulty that we of to-day are called upon to meet under circumstances of peculiar and additional disadvantage; for while in the convention of 1787 there was a difference arising from interest, from all the infinite variances of prejudice and opinion upon subjects of local, geographical, and pecuniary interests, and making mutual concessions and patriotic considerations necessary at all times, yet they were spared the most dangerous of all feelings under which our country has suffered of late; for, amid all the perturbing causes to interfere with and distract their counsels, partisan animosity was at least unknown. There was in that day no such thing as political party in the United States:—

"Then none were for a party, But all were for the State."

Political parties were formed afterward and have grown in strength since, and to-day the troubles that afflict our country chiefly may be said to arise from the dangerous excess of party feeling in our councils.

But I propose to refer to the condition of the law and the Constitution as we now find it. The second article of the first section of the Constitution provides for the vesting of the executive power in the President and also for the election of a Vice-President. First it provides that "each State" shall, through its legislature, appoint the number of electors to which it is entitled, which shall be the number of its Representatives in Congress and its Senators combined. The power there is to the State to appoint. The grant is as complete and perfect that the State shall have that power as is another clause of the Constitution giving to "each State" the power to be represented by the Senators in this branch of Congress. There is given to the electors prescribed duties, which I will read:—

The electors shall meet in their respective States and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same State with themselves: they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each; which lists they shall sign and certify, and transmit sealed to the seat of government of the United States, directed to the President of the Senate. The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates, and the votes shall then be counted.

Then follows the duty and power of Congress in connection with this subject to determine the time of choosing the electors and the day on which they shall give their votes, which day shall be the same throughout the United States. The next clause provides for the qualifications of the candidates for the presidency and vice-presidency. The next clause gives power to the Congress of the United States to provide for filling the office of President and Vice-President in the event of the death, resignation, or inability of the incumbents to vest the powers and duties of the said office. The other clause empowers Congress thus to designate a temporary President. The other clauses simply relate to the compensation of the President and the oath he shall take to perform the duties of the office. Connected with that delegation of power is to be considered the eighth section of the first article which gives to the Congress of the United States power "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof."

It will be observed, so far, that the Constitution has provided the power but has not provided the regulations for carrying that power into effect. The Supreme Court of the United States sixty-odd years ago defined so well the character of that power and the method of its use that I will quote it from the first volume of Wheaton's Reports, page 326:

Leaving it to the legislature from time to time to adopt its own means to effectuate, legitimate, and mold and model the exercise of its powers as its own wisdom and public interest should require.

In less than four years, in March 1792, after the first Congress had assembled there was legislation upon this subject, carrying into execution the power vested by this second article of the Constitution in a manner which will leave no doubt of what the men of that day believed was competent and proper. Here let me advert to that authority which must ever attach to the contemporaneous exposition of historical events. The men who sat in the Congress of 1792 had many of them been members of the convention that framed the Federal Constitution. All were its contemporaries and closely were they considering with master-minds the consequences of that work. Not only may we gather from the manner in which they treated this subject when they legislated upon it in 1792 what were their views of the powers of Congress on the subject of where the power was lodged and what was the proper measure of its exercise, but we can gather equally well from the inchoate and imperfect legislation of 1800 what those men also thought of their power over this subject, because, although differing as to details, there were certain conceded facts as to jurisdiction quite as emphatically expressed as if their propositions had been enacted into law. Likewise in 1824 the same instruction is afforded. If we find the Senate of the United States without division pass bills which, although not passed by the co-ordinate branch of Congress, are received by them and reported back from the proper committees after examination and without amendment to the committee of the whole House, we may learn with equal authority what was conceded by those houses as to the question of power over the subject. In a compilation made at the present session by order of the House Committee, co-ordinate with the Senate Committee, will be found at page 129 a debate containing expressions by the leading men of both parties in 1857 of the lawfulness of the exercise of the legislative power of Congress over this subject. I venture to read here from the remarks of Mr. Hunter, of Virginia, one of the most respected and conservative minds of his day in the Congress of the United States:—

The Constitution evidently contemplated a provision to be made by law to regulate the details and the mode of counting the votes for President and Vice-President of the United States. The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates, and the votes shall then be counted. By whom, and how to be counted, the Constitution does not say. But Congress has power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof. Congress, therefore, has the power to regulate by law the details of the mode in which the votes are to be counted. As yet, no such law has been found necessary. The cases, happily, have been rare in which difficulties have occurred in the count of the electoral votes. All difficulties of this sort have been managed heretofore by the consent of the two houses—a consent either implied at the time or declared by joint resolutions adopted by the houses on the recommendation of the joint committee which is usually raised to prescribe the mode in which the count is to be made. In the absence of law, the will of the two houses thus declared has prescribed the rule under which the President of the Senate and the tellers have acted. It was by this authority, as I understand it, that the President of the Senate acted yesterday. The joint resolution of the two bouses prescribed the mode in which the tellers were to make the count and also required him to declare the result, which he did. It was under the authority, therefore, and by the direction of the two houses that he acted. The resolutions by which the authority was given were according to unbroken usage and established precedent.

Mr. President, the debate from which I have read took place in 1857 and was long and able, the question there arising upon the proposed rejection of the vote of the State of Wisconsin, because of the delay of a single day in the meeting of the electors. A violent snowstorm having prevented the election on the third of December, it was held on the fourth, which was clearly in violation of the law of Congress passed in pursuance of the Constitution requiring that the votes for the electors should be cast on the same day throughout the Union. That debate will disclose the fact that the danger then became more and more realized of leaving this question unsettled as to who should determine whether the electoral votes of a State should be received or rejected when the two houses of Congress should differ upon that subject. There was no arbiter between them. This new-fangled idea of the present hour, that the presiding officer of the Senate should decide that question between the two disagreeing houses, had not yet been discovered in the fertility of political invention, or born perhaps of party necessity. The question has challenged all along through our country's history the ablest minds of the country; but at last we have reached a point when under increased difficulties we are bound to settle it. It arose in 1817 in the case of the State of Indiana, the question being whether Indiana was a State in the Union at the time of the casting of her vote. The two houses disagreed upon that subject; but by a joint resolution, which clearly assumed the power of controlling the subject, as the vote of Indiana did not if cast either way control the election, the difficulty was tided over by an arrangement for that time and that occasion only. In 1820 the case of the State of Missouri arose and contained the same question. There again came the difficulty when the genius and patriotism of Henry Clay were brought into requisition and a joint resolution introduced by him and adopted by both houses was productive of a satisfactory solution for the time being. The remedy was merely palliative; the permanent character of the difficulty was confessed and the fact that it was only a postponement to men of a future generation of a question still unsettled.

It is not necessary, and would be fatiguing to the Senate and to myself, to give anything like a sketch of the debate which followed, of the able and eminent men on both sides who considered the question, arriving, however, at one admitted conclusion, that the remedy was needed and that it did lie in the law-making power of the government to furnish it.

Thus, Mr. President, the unbroken line of precedent, the history of the usage of this government from 1789 at the first election of President and Vice-President until 1873, when the last count of electoral votes was made for the same offices, exhibits this fact, that the control of the count of the electoral votes, the ascertainment and declaration of the persons who were elected President and Vice-President, has been under the co-ordinate power of the two houses of Congress, and under no other power at any time or in any instance. The claim is now gravely made for the first time, in 1877, that in the event of disagreement of the two houses the power to count the electoral votes and decide upon their validity under the Constitution and law is vested in a single individual, an appointee of one of the houses of Congress, the presiding officer of the Senate. In the event of a disagreement between the two houses, we are now told, he is to assume the power, in his sole discretion, to count the vote, to ascertain and declare what persons have been elected; and this, too, in the face of an act of Congress, passed in 1792, unrepealed, always recognized, followed in every election from the time it was passed until the present day. Section 5 of the act of 1792 declares:—

That Congress shall be in session on the second Wednesday in February 1793, and on the second Wednesday in February succeeding every meeting of the electors; and the said certificates, or so many of them as shall have been received, shall then be opened, the votes counted, and the persons who shall fill the offices of President and Vice-President ascertained and declared agreeably to the Constitution.

Let it be noted that the words "President of the Senate" nowhere occur in the section.

But we are now told that though "Congress shall be in session," that though these two great bodies duly organized, each with its presiding officer, accompanied by all its other officers, shall meet to perform the duty of ascertaining and declaring the true result of the action of the electoral colleges and what persons are entitled to these high executive offices, in case they shall not agree in their decisions there shall be interposed the power of the presiding officer of one of the houses to control the judgment of either and become the arbiter between them. Why, Mr. President, how such a claim can be supposed to rest upon authority is more than I can imagine. It is against all history. It is against the meaning of laws. It is not consistent with the language of the Constitution. It is in the clearest violation of the whole scheme of this popular government of ours, that one man should assume a power in regard to which the convention hung for months undecided, and carefully and grudgingly bestowing that power even when they finally disposed of it. Why, sir, a short review of history will clearly show how it was that the presiding officer of the Senate became even the custodian of the certificates of the electors.

On the fourth of September, 1787, when approaching the close of their labors, the convention discovered that they must remove this obstacle, and they must come to an agreement in regard to the deposit of this grave power. When they were scrupulously considering that no undue grant of power should be made to either branch of Congress, and when no one dreamed of putting it in the power of a single hand, the proposition was made by Hon. Mr. Brearly, from a committee of eleven, of alterations in the former schemes of the convention, which embraced this subject. It provided:—

5. Each State shall appoint, in such manner as its legislature may direct a number of electors equal to the whole number of Senators and Members of the House of Representatives to which the State may be entitled in the legislature.

6. The electors shall meet in their respective States and vote by ballot for two persons, one of whom at least shall not be an inhabitant of the same State with themselves; and they shall make a list of all the persons voted for, and of the number of votes for each, which list they shall sign and certify, and transmit sealed to the seat of the general government, directed to the President of the Senate.

7. The President of the Senate shall, in that house, open all the certificates; and the votes shall be then and there counted. The person having the greatest number of votes shall be the President, if such number shall be a majority of the whole number of the electors appointed; and if there be more than one who have such majority and have an equal number of votes, then the Senate shall choose by ballot one of them for President; but if no person have a majority, then from the five highest on the list the Senate shall choose by ballot the President. And in every case after the choice of the President the person having the greatest number of votes shall be Vice-President. But if there should remain two or more who shall equal votes, the Senate shall choose from them the Vice-President. (See 'Madison Papers.' page 506. etc.)

Here we discover the reason why the President of the Senate was made the custodian of these certificates. It was because in that plan of the Constitution the Senate was to count the votes alone; the House was not to be present; and in case there was a tie or failure to find a majority the Senate was to elect the President and Vice-President. The presiding officer of the body that was to count the votes alone, of the body that alone was to elect the President in default of a majority—the presiding officer of that body was naturally the proper person to hold the certificates until the Senate should do its duty. It might as well be said that because certificates and papers of various kinds are directed to the President of this Senate to be laid before the Senate that he should have the control to enact those propositions into law, as to say that because the certificates of these votes were handed to him he should have the right to count them and ascertain and declare what persons had been chosen President and Vice-President of the United States.

But the scheme reported by Mr. Brearly met with no favor. In the first place, it was moved and seconded to insert the words "in the presence of the Senate and House of Representatives" after the word "counted." That was passed in the affirmative. Next it was moved to strike out the words "the Senate shall immediately choose by ballot" and insert the words "and House of Representatives shall immediately choose by ballot one of them for President, and the members of each State shall have one vote," and this was adopted by ten States in the affirmative to one State in the negative.

Then came another motion to agree to the following paragraph, giving to the Senate the right to choose the Vice-President in case of the failure to find a majority, which was agreed to by the convention; so that the amendment as agreed to read as follows:—

The President of the Senate, in the presence of the Senate and House of Representatives, shall open all the certificates, and the votes shall then be counted. The person having the greatest number of votes shall be President, if such number be a majority of the whole number of electors appointed: and if there be more than one who have such majority, and have an equal number of votes, then the House of Representatives shall immediately choose by ballot one of them for President, the representation from each State having one vote; but if no person have a majority, then from the five highest on the list the House of Representatives shall in like manner choose by ballot the President.

And then follows that if there should remain two candidates voted for as Vice-President having an equal vote the Senate shall choose from them the Vice-President. Mr. President, is it not clear that the Constitution directed that the certificates should be deposited with the presiding officer of that body which was alone to count the votes and elect both the President and Vice-President in case there was a failure to find a majority of the whole number of electors appointed? There is a maxim of the law, that where the reason ceases the law itself ceases. It is not only a maxim of common law, but equally of common sense. The history of the manner in which and the reason for which the certificates were forwarded to the President of the Senate completely explains why he was chosen as the depositary and just what connection he had with and power over those certificates. After the power had been vested in the House of Representatives to ballot for the President, voting by States, after the presence of the House of Representatives was made equally necessary before the count could begin or proceed at all, the President of the Senate was still left as the officer designated to receive the votes. Why? Because the Senate is a continuing body, because the Senate always has a quorum. Divided into three classes, there never is a day or a time when a quorum of the Senate of the United States is not elected and cannot be summoned to perform its functions under the Constitution. Therefore you had the officer of a continuing body, and as the body over which he presided and by whom he is chosen was one of the two co-ordinate bodies to perform the great function of counting the votes and of ascertaining and declaring the result of the electoral vote, he was left in charge of the certificates.

You also find in the sixth section of the act of 1792 that Congress exercised its regulating power and declared "that in case there shall be no President of the Senate at the seat of government on the arrival of the persons intrusted with the lists of votes of the electors, then such persons shall deliver the lists of votes in their custody into the office of the Secretary of State to be safely kept and delivered over as soon as may be to the President of the Senate."

What does this signify? That it was a simple question of custody, of safe and convenient custody, and there is just as much reason to say that the Secretary of State being the recipient of those votes had a right to count them as to say that the other officer designated as the recipient of the votes, the President of the Senate, had a right to count them.

Now, here is another fact a denial of which cannot be safely challenged. Take the history of these debates upon the formation of the Federal Constitution from beginning to end, search them, and no line or word can be discovered that even suggests any power whatever in any one man over the subject, much less in the President of the Senate, in the control of the election of the President or the Vice-President. Why, sir, there is the invariable rule of construction in regard to which there can be no dispute, that the express grant of one thing excludes any other. Here you have the direction to the President of the Senate that be shall receive these certificates, or if absent that another custodian shall receive them, hold them during his absence and pass them over to him as soon as may be, and that then he shall in the presence of the two houses of Congress "open all the certificates." There is his full measure of duty; it is clearly expressed; and then after that follows the totally distinct duty, not confided to him, that "the votes shall then be counted."

I doubt very much whether any instrument not written by an inspired hand was more clear, terse, frugal of all words except those necessary to express its precise meaning, than the Constitution of the United States. It would require the greatest ingenuity to discover where fewer words could be used to accomplish a plain end. How shall it be that in this closely considered charter, where every word, every punctuation was carefully weighed and canvassed, they should employ seven words out of place when two words in place would have fulfilled their end? If it had been intended to give this officer the power to count, how easy to read, "The President of the Senate shall, in the presence of the Senate and House of Representatives, open and count the votes." Why resort to this other, strained, awkward, ungrammatical, unreasonable transposition of additional words to grant one power distinctly and leave the other to be grafted upon it by an unjust implication? No, Mr. President, if it were a deed of bargain and sale, or any question of private grant, if it did not touch the rights of a great people, there would be but one construction given to this language, that the expression of one grant excluded the other. It was a single command to the President of the Senate that, as the custodian, he should honestly open those certificates and lay them before the two houses of Congress who were to act, and then his duty was done, and that was the belief of the men who sat in that convention, many of whom joined in framing the law of 1792 which directed Congress to be in session on a certain day and that the votes should be counted and the persons who should fill the office of President and Vice-president ascertained and declared agreeably to the Constitution.

The certificates are to be opened by their custodian, the President of the Senate, in the presence of the Senate and the House of Representatives. Let it be noted this is not in the presence of the Senators and Representatives, but it is in the presence of two organized bodies who cannot be present except as a Senate and as a House of Representatives, each with its own organization, its own presiding officer and all adjuncts, each organized for the performance of a great duty.

When the first drafts of the Constitution were made, instead of saying "in the presence of the Senate and the House of Representatives," they called it "the Legislature." What is a Legislature? A law-making body organized, not a mob, but an organized body to make laws; and so the law-making power of this Union, consisting of these two houses, is brought together. But it seems to me a most unreasonable proposition to withhold from the law-making power of this government the authority to regulate this subject and yet be willing to intrust it to a single hand. There is not a theory of this government that will support such a construction. It is contrary to the whole genius of the government; it is contrary to everything in the history of the formation of the government; it is contrary to the usage of the government since its foundation.

The President of the Senate is commanded by the Constitution to open the votes in the presence of the two houses. He does not summon them to witness his act, but they summon him by appointing a day and hour when he is to produce and open in their presence all the certificates he may have received, and only then and in their presence can he undertake to open them at all. If he was merely to summon them as witnesses of his act it would have been so stated. But when did the President of the Senate ever undertake to call the two houses together to witness the opening and counting of the votes? No, sir; he is called at their will and pleasure to bring with him the certificates which he has received, and open them before them and under their inspection, and not his own. When the certificates have been opened, when the votes have been counted, can the President of the Senate declare the result? No, sir, he has never declared a result except as the mouthpiece and the organ of the two houses authorizing and directing him what to declare, and what he did declare was what they had ascertained and in which ascertainment he had never interfered by word or act.

Suppose there shall be an interruption in the count, as has occurred in our history, can the President of the Senate do it? Did he ever do it? Is such an instance to be found? Every interruption in the count comes from some Member of the House or of the Senate, and upon that the pleasure of the two houses is considered, the question put to them to withdraw if they desire, and the count is arrested until they shall order it to recommence. The proceeding in the count, the commencement of the count is not in any degree under his control. It is and ever was in the two houses, and in them alone. They are not powerless spectators; they do not sit "state statues only," but they are met as a legislature in organized bodies to insure a correct result of the popular election, to see to it that "the votes shall then be counted" agreeably to the Constitution.

In 1792 when some of the men who sat in the convention that framed the Constitution enacted into law the powers given in relation to the count of the electoral votes, they said, as I have read, that the certificates then received shall be opened and the votes counted, "and the persons to fill the offices of President and Vice-President ascertained agreeably to the Constitution," and that direction is contained in the same section of the law that commands Congress to be in session on that day. It is the law-making power of the nation, the legislature, that is to perform this solemn and important duty, and not a single person who is selected by one branch of Congress and who is removable at their will, according to a late decision of the Senate.

Yes, Mr. President, the power contended for by some Senators, that the President of the Senate can, in the contingency of a disagreement between the two houses, from the necessity of the case, open and count the vote, leads to this: that upon every disputed vote and upon every decision a new President of the Senate could be elected; that one man could be selected in the present case to count the vote of Florida; another, of South Carolina; another, of Oregon; another, of Louisiana; and the Senate could fill those four offices with four different men, each chosen for that purpose, and when that purpose was over to be displaced by the same breath that set them up for the time being.

Now, sir, if, as has been claimed, the power of counting the votes is deposited equally in both houses, does not this admission exclude the idea of any power to count the votes being deposited in the presiding officer of one of those houses, who is, as I say, eligible and removable by a bare majority of the Senate, and at will? If the presiding officer of the Senate can thus count the vote, the Senate can control him. Then the Senate can control the count and, the Senate appointing their President, become the sole controllers of the vote in case of disagreement. What then becomes of the equal measure of power in the two houses over this subject? If the power may be said to exist only in case of disagreement, and then ex necessitate rei, all that remains for the Senate is to disagree, and they themselves have created the very contingency that gives them the power, through their President to have the vote counted or not counted, as they may desire. Why, sir, such a statement destroys all idea of equality of power between the two houses in regard to this subject.

When the President of the Senate has opened the certificates and handed them over to the tellers of the two houses, in the presence of the two houses, his functions and powers have ended. He cannot repossess himself of those certificates or papers. He can no longer control their custody. They are then and thereafter in the possession and under the control of the two houses who shall alone dispose of them.

Why, sir, what a spectacle would it be, some ambitious and unscrupulous man the presiding officer of the Senate, as was once Aaron Burr, assuming the power to order the tellers to count the vote of this State and reject the vote of that, and so boldly and shamelessly reverse the action of the people expressed at the polls, and step into the presidency by force of his own decision. Sir, this is a reduction of the thing to an absurdity never dreamed of until now, and impossible while this shall remain a free government of law.

Now, Mr. President, as to the measure before us a few words. It will be observed that this bill is enacted for the present year, and no longer.

This is no answer to an alleged want of constitutional power to pass it, but it is an answer in great degree where the mere policy and temporary convenience of the act are to be considered.

In the first place, the bill gives to each house of Congress equal power over the question of counting, at every stage.

It preserves intact the prerogatives, under the Constitution, of each house.

It excludes any possibility of judicial determination by the presiding officer of the Senate upon the reception and exclusion of a vote.

The certificates of the electoral colleges will be placed in the possession and subject to the disposition of both houses of Congress in joint session.

The two houses are co-ordinate and separate and distinct. Neither can dominate the other. They are to ascertain whether the electors have been validly appointed, and whether they have validly performed their duties as electors. The two houses must, under the act of 1792, "ascertain and declare" whether there has been a valid election, according to the Constitution and laws of the United States. The votes of the electors and the declaration of the result by the two houses give a valid title, and nothing else can, unless no majority has been disclosed by the count; in which case the duty of the House is to be performed by electing a President, and of the Senate by electing a Vice-President.

If it be the duty of the two houses "to ascertain" whether the action of the electors has been in accordance with the Constitution, they must inquire. They exercise supervisory power over every branch of public administration and over the electors. The methods they choose to employ in coming to a decision are such as the two houses, acting separately or together, may lawfully employ. Sir, the grant of power to the commission is in just that measure, no more and no less. The decision they render can be overruled by the concurrent votes of the two houses. Is it not competent for the two houses of Congress to agree that a concurrent majority of the two houses is necessary to reject the electoral vote of a State? If so, may they not adopt means which they believe will tend to produce a concurrence? Finally, sir, this bill secures the great object for which the two houses were brought together: the counting of the votes of the electoral college; not to elect a President by the two houses, but to determine who has been elected agreeably to the Constitution and the laws. It provides against the failure to count the electoral vote of a State in event of disagreement between the two houses, in case of single returns, and, in cases of contest and double returns, furnishes a tribunal whose composition secures a decision of the question in disagreement, and whose perfect justice and impartiality cannot be gainsaid or doubted.

The tribunal is carved out of the body of the Senate and out of the body of the House by their vote viva voce. No man can sit upon it from either branch without the choice, openly made, by a majority of the body of which he is a member, that he shall go there. The five judges who are chosen are from the court of last resort in this country, men eminent for learning, selected for their places because of the virtues and the capacities that fit them for this high station. … Mr. President, objection has been made to the employment of the commission at all, to the creation of this committee of five senators, five representatives, and five judges of the Supreme Court, and the reasons for the objection have not been distinctly stated. The reasons for the appointment I will dwell upon briefly.

Sir, how has the count of the vote of every President and Vice-President, from the time of George Washington and John Adams, in 1789, to the present day, been made? Always and without exception by tellers appointed by the two houses. This is without exception, even in the much commented case of Mr. John Langdon, who, before the government was in operation, upon the recommendation of the constitutional convention, was appointed by the Senate its President, for the sole purpose of opening and counting these votes. He did it, as did every successor to him, under the motion and authority of the two houses of Congress, who appointed their own agents, called tellers to conduct the count, and whose count, being reported to him, was by him declared.

From 1793 to 1865 the count of votes was conducted under concurrent resolutions of the two houses, appointing their respective committees to join "in ascertaining and reporting a mode of examining the votes for President and Vice-President."

The respective committees reported resolutions fixing the time and place for the assembling of the two houses, and appointing tellers to conduct the examination on the part of each house respectively.

Mr. President, the office of teller, or the word "teller," is unknown to the Constitution, and yet each house has appointed tellers, and has acted upon their report, as I have said, from the very foundation of the government. The present commission is more elaborate, but its objects and its purposes are the same, the information and instruction of the two houses who have a precisely equal share in its creation and organization; they are the instrumentalities of the two houses for performing the high constitutional duty of ascertaining whom the electors in the several States have duly chosen President and Vice-President of the United States. Whatever is the jurisdiction and power of the two houses of Congress over the votes, and the judgment of either reception or rejection, is by this law wholly conferred upon this commission of fifteen. The bill presented does not define what that jurisdiction and power is, but it leaves it all as it is, adding nothing, subtracting nothing. Just what power the Senate by itself, or the House by itself, or the Senate and the House acting together, have over the subject of counting, admitting, or rejecting an electoral vote, in case of double returns from the same State, that power is by this act, no more and no less, vested in the commission of fifteen men; reserving, however, to the two houses the power of overruling the decision of the commission by their concurrent action.

The delegation to masters in chancery of the consideration and adjustments of questions of mingled law and fact is a matter of familiar and daily occurrence in the courts of the States and of the United States.

The circuit court of the United States is composed of the district judge and the circuit judge, and the report to them of a master is affirmed unless both judges concur in overruling it.

Under the present bill the decision of the commission will stand unless overruled by the concurrent votes of the two houses. I do not propose to follow the example which has been set here in the Senate by some of the advocates as well as the opponents of this measure, and discuss what construction is to be given and what definition may be applied or ought to be applied in the exercise of this power by the commission under this law. Let me read the bill:—

All the certificates and papers purporting to be certificates of the electoral votes of each State shall be opened, in the alphabetical order of the States, as provided in Section 1 of this act; and when there shall be more than one such certificate or paper, as the certificates and papers from such State shall so be opened (excepting duplicates of the same return), they shall be read by the tellers, and thereupon the President of the Senate shall call for objections, if any. Every objection shall be made in writing, and shall state clearly and concisely, and without argument, the ground thereof, and shall be signed by at least one Senator and one Member of the House of Representatives before the same shall be received. When all such objections so made to any certificate, vote, or paper from a State shall have been received and read, all such certificates, votes, and papers so objected to, and all papers accompanying the same, together with such objections, shall be forthwith submitted to said commission, which shall proceed to consider the same, with the same powers, if any, now possessed for that purpose by the two houses acting separately or together, and, by a majority of votes, decide whether any and what votes from such States are the votes provided for by the Constitution of the United States, and how many and what persons were duly appointed electors in such State, and may therein take into view such petitions, depositions, and other papers, if any, as shall, by the Constitution and now existing law, be competent and pertinent in such consideration: which decision shall be made in writing.

It will be observed that all the questions to be decided by this commission are to be contained in the written objections. Until those objections are read and filed, their contents must be unknown, and the issues raised by them undescribed. But whatever they are, they are submitted to the decision of the commission. The duty of interpreting this law and of giving a construction to the Constitution and existing laws is vested in the commission; and I hold that we have no right or power to control in advance, by our construction, their sworn judgment as to the matters which they are to decide. We would defeat the very object of the bill should we invade the essential power of judgment of this commission and establish a construction in advance and bind them to it. It would, in effect, be giving to them a mere mock power to decide by leaving them nothing to decide.

Mr. President, there are certainly very good reasons why the concurrent action of both houses should be necessary to reject a vote. It is that feature of this bill which has my heartiest concurrence; for I will frankly say that the difficulties which have oppressed me most in considering this question a year or more ago, before any method had been devised, arose from my apprehensions of the continued absorption of undue power over the affairs of the States; and I here declare that the power and the sole power of appointing the electors is in the State, and nowhere else. The power of ascertaining whether the State has executed that power justly and according to the Constitution and laws is the duty which is cast upon the two houses of Congress. Now, if, under the guise or pretext of judging of the regularity of the action of a State or its electors, the Congress or either house may interpose the will of its members in opposition to the will of the State, the act will be one of usurpation and wrong, although I do not see where is the tribunal to arrest and punish it except the great tribunal of an honest public opinion. But sir that tribunal, though great, though in the end certain, is yet ofttimes slow to be awakened to action; and therefore I rejoice when the two houses agree that neither of them shall be able to reject the vote of a State which is without contest arising within that State itself, but that the action of both shall be necessary to concur in the rejection.

If either house may reject, or by dissenting cause a rejection, then it is in the power of either house to overthrow the electoral colleges or the popular vote, and throw the election upon the House of Representatives. This, it is clear to me, cannot be lawfully done unless no candidate has received a majority of the votes of all the electors appointed. The sworn duty is to ascertain what persons have been chosen by the electors, and not to elect by Congress.

It may be said that the Senate would not be apt to throw the election into the House. Not so, Mr. President; look at the relative majorities of the two houses of Congress as they will be after the fourth of March next. It is true there will be a numerical majority of the members of the Democratic party in the House of Representatives, but the States represented will have a majority as States of the Republican party. If the choice were to be made after March 4th, then a Republican Senate, by rejecting or refusing to count votes, could of its own motion throw the election into the House; which, voting by States, would be in political accord with the Senate. The House of Representatives, like the present House in its political complexion, composed of a numerical majority, and having also a majority of the States of the same party, would have the power then to draw the election into its own hands. Mr. President, either of these powers would be utterly dangerous and in defeat of the object and intent of the constitutional provisions on this subject.

Sir, this was my chief objection to the twenty-second joint rule. Under that rule either house of Congress, without debate, without law, without reason, without justice, could, by the sheer exercise of its will or its caprice, disfranchise any State in the electoral college. Under that rule we lived and held three presidential elections.

In January 1873, under a resolution introduced by the honorable Senator from Ohio [Mr. Sherman] and adopted by the Senate, the Committee on Privileges and Elections, presided over by the honorable Senator from Indiana [Mr Morton], proceeded to investigate the elections held in the States of Louisiana and Arkansas, and inquired whether these elections had been held in accordance with the Constitution and laws of the United States and the laws of said States, and sent for persons and papers and made thorough investigation, which resulted in excluding the electoral votes of Louisiana from the count, (See Report No. 417, third session Forty-Second Congress.)

The popular vote was then cast, and it was cast at the mercy of a majority in either branch of Congress, who claimed the right to annul it by casting out States until they should throw the election into a Republican House of Representatives. I saw that dangerous power then, and, because I saw it then, am I so blind, am I so without principle in my action, that I should ask for myself a dangerous power that I refused to those who differ from me in opinion? God forbid.

This concurrence of the two houses to reject the electoral votes of a State was the great feature that John Marshall sought for in 1800. The Senate then proposed that either house should have power to reject a vote. The House of Representatives, under the lead of John Marshall, declared that they should concur to reject the vote, and upon that difference of opinion the measure fell and was never revived. In 1824 the bill prepared by Mr. Van Buren contained the same wholesome principle and provided that the two houses must concur in the rejection of a vote. Mr. Van Buren reported this bill in 1824. It was amended and passed, and, as far as I can find from the record, without a division of the Senate. It was referred in the House of Representatives to the Committee on the Judiciary, and it was reported back by Mr. Daniel Webster, without amendment, to the Committee of the Whole House, showing their approval of the bill; and that principle is thoroughly incorporated in the present measure and gives to me one of the strong reasons for my approval.

Mr. President, this bill is not the product of any one man's mind, but it is the result of careful study and frequent amendment. Mutual concessions, modifications of individual preferences, were constantly and necessarily made in the course of framing such a measure as it now stands. My individual opinions might lead me to object to the employment of the judicial branch at all, of ingrafting even to any extent political power upon the judicial branch or its members, or confiding to them any question even quasi-political in its character. To this I have expressed and still have disinclination, but my sense of the general value of this measure and the necessity for the adoption of a plan outweighed my disposition to insist upon my own preferences as to this feature. At first I was disposed to question the constitutional power to call in the five justices of the Supreme Court, but the duty of ascertaining what are the votes, the true votes, under the Constitution, having been imposed upon the commission, the methods were necessarily discretionary with the two houses. Any and every aid that intelligence and skill combined can furnish may be justly used when it is appropriate to the end in view.

Why, sir, the members of the Supreme Court have in the history of this country been employed in public service entirely distinct from judicial function. Here lately the treaty of Washington was negotiated by a member of the Supreme Court of the United States; the venerable and learned Mr. Justice Nelson, of New York, was nominated by the President and confirmed by the Senate as one of the Joint High Commission. Chief-Justice Jay was sent in 1794, while he was chief-justice of the United States, as minister plenipotentiary to England, and negotiated a treaty of permanent value and importance to both countries. He was holding court in the city of Philadelphia at the time that he was nominated and confirmed, as is found by reference to his biography, and—