The New York Herald Newspaper, January 24, 1877, Page 3

THE ELECTORAL QUESTION, ——-—___ The Gladiators of Debate in the Senate Chamber. CONKLING'S GREAT FORENSIC EFFORT. The Pretence of the Vice President’s Authority Demolished. Law, Precedent, Reason and the Future of Things Against It. THE SPEECH OF SENATOR SHERMAN. What Was Said and What Left Unsaid. SCENE IN THE SENATE CHAMBER. The Overwhelming Power of Public Sentiment Asserting Itself. DESPERATION OF THE EXTREMISTS. FROM OUR SPECIAL CORRESPONDENT. Wasurvatox, Jan. 23, 1877. CONTINUANCE OF THE DEBATE ON THE ELEO- TORAL BILL—WHAT SENATOR SHERMAN SAID AND WHAT HE NEIGLECTED TO s8A4Y—MR CONKLING’S GREAT SPEECH—THE PRETENSE OF THE VICE PRESIDENTS POWER DISPOSED OF—a CONSIDERATION OF THE PRECEDENTS, ‘The second day’s debate in the Senate has at least Bettled the question of tho Vice President’s powers un- the constitution. Senator Conkling, seriously illand tvidently suffering, yot so vigorously attacked and so trenchantly and thoroughly demolished, {rom every possible point of view, the pretence that the President of the Senate was ever intended by the framers of the tonatitution to count the vote, or to do more than open the certificates, or that he ever counted the vote, or assumed the authority to do so, or could, under any possible construction of the constitution, be supposed to possess the power to do it, that it is not probable + Any one will have the hardihood hereafter to revive this question. Senator Sherman opened the debate, and, like Sena- tors Morton and Cameron yesterday, was shocked at the proposal to bring the Supreme Judges into poli- tics. Hoe was shooxed also at the manner in which tho "Judges wore se‘ected, and seemed never to have known ‘efacaso of arbitration whoro two arbitrators were thosen with leavo to choose a third themselves, A -eonsiderable part of Mr. Sherman’s speech was a “studied isult to the Supreme Judges, whom apparently he would not be willing to trust to arbitrate a twenty-five dollar law suit, in which he was interested. Xven Sonator Morton looked 2s though Mr. Sherman ‘Was o¥ordoing this mattor # little, for Mr. Morton @oudtiess remethbered ‘that ho said only last March, @ little more than ten months ago:— Wt scoms to me that if we have got to rofer this qhestion to any body it would be more satisfactory to ,Fefer it to the Supreme Court-of the United States, and if you cannot do it m the character of the 3u- preme Court, then let your special tribanal be com- posed of judges of that court, and let them decide, and decide 1t forthwith, And again:— If wo have power to give any outside tribunal juris- diction, we have power to give is to the Supreme Court, and that would be the most satisfactory tribunal to which we could refer so grout a question, The poo- ple of this country would submit with more satisfuc- {ion to the decision of that body than they would to the decision of any one,man, 1 care not how wise or how great ho might be, or to any special tribunal that ‘we might create, SENATOR SHRRMAN’S NEGLECT. Mr, Sherman quoted Mr. Pinckney out of an old debate in support of his views, but he forgot to tell the Senato that with the exception of Messrs. Pinck- ney and John Randolph in the old times, and at most five or six Senators and Represontatives, no one in either house has, since the fousdation of tho govern- ment, doubted the powers of Congress over the electoral vote, Ho negiected to tell the Senate that in all the debates on this question from the foundation ot tha government to the beginning of this session, not ten men, drank or sober—and one of them was un- doubtedly drunk when he spoke—have asserted that the Vice President has the right, under any circam- Btances, to count the vote. He neglected also to fell the Senate that when, for the only time in 1801 the Joint committec appointed as usual to as- sertain and ‘‘roport a method of examining the votes for I'residons and Vice President” failed to agreo, the Vice President did not thereupon assume to count the Vote, but the two houses, notwithstanding no rule Or method had been adopted, kopt the matter in their own hands precisely as thoy have done ever Since, 80 that thore is no precedent for the assump- Won that, evon in the extrome case where the two houses fail to agree upon a “method of examining the vote,” the View President bas any power in the mat- ter, SENATOR COSKLIXG's SPEECH. When Mr. Sherman closed Mr. Conkling rose. 1t fakuown that ho has, within a fow days, sufiered a Telapse of the malarial divease from which he has been a severe sufferer sinco Jast summer, and ‘that it was doubtful whether he could master strength enough to speak, Soon after he rose, members of the other house began to pour into tho Senate Chamber, ‘which was presently crowded, and #o remained until he sat down. Most of the prominent members of tho House, of both parties, were present, and with tho Galleries, which rapidly filled up, listened eagerly and with unflagging mterest to the speaker, Tho space in the rear of the circle was so darkened by an assemblage of distinguished men that, at various stages In dis address, the speaker turned involantarily toward them ag if uppeating throagh them to what he called the "patriotic virtue and the overwhelming common sense” of the country. William M. Evarts, David Dudley Field, Genoral Sherman, Sena- tors -clect Lamar and Hoar, and the flower of the House of Ropresentatives were present, and Senator Thurman took up ‘bis position at the right of* Wee Clerk's dosk, a selection not only convenient but tepecially complimentary to a Senator who was ad- Wessing the body. Indisposed as he-evidently was, We. Conkling did not lock vigor, He spoke oxtem- poraneously, not having had the strength necessary for careful preparation, and the few notes whioh lay ; NEW YORK on his desk, beside a fragrant used. THE VICE PRESIDENI’S POWKR, ==. He attacked the assumption that the Vice President had or was intended by the framers of the constitution ‘to have any powcr whatever in regard to the electoral Vote, except to open tho certificates, and bis argument ‘was that of a great lawyer as well as of a statesman. It was fall of information. His statements were exact, his language sparkling with epigram, his abundant Ulustrations pertinent aad luminous, and he demolished first the front and then the flanks of the fortress on which the opponents of the bill had intrenched themselves unti! nothing was lef, and when the Senate broke up everybody felt that the question, at least, was fully and finally settled beyond the necessity or possibility of further argu- meat, Many passages ir the speech were very striking, and struck home tndeed. Alluding to the language of the constitution which says that ‘the President of the Senate shall open the electoral certificates and they shall then be counted,” he turned aside, and, with one hand outstretched to the Senators, the other stretched toward the President’s chair, exclaimed, “By him!” in a tone which set the galleries fluttering. “If tt bad beam intended that the vote should be counted by him, those two little wortis,’’ said he, ‘as two Senators have said before me, would have ex- pressed that intention." Mr. Morton bad, unluckily for oimself, asserted that the Vice President must not only count, but he must count all the votes, good, bad or indifferent. “Is a President, then, to be chosen,” asked Mr. Conkling, **by counting forged votes; votes for a man condemnoa to lasting disgrace and inability by the Senate on impeachment; votes fora dead man? Was it intended by those who framed the constitution that votes foradead man should fill with an aching void the Presidential office? To count my Gngerr,"” he said, “that is a purely ministerial office; to count a pile of paper {fs the same; to count bank notes, among which may be counterfeits, and to sort the truco from tho false, that requires the exercise of judgment. If New York should send hore forty-five electoral votes they would not be counted; they would have td be sorted. He showed the puerility of the argument that if the houses were to scrutinize the vote tho action of one house might bring the country to ruip, saying that | one house might ruin the country by refusing appropriations and in a multitude of other ways which he recited. ‘Government,’ said he, “rests on the consent of the governed. Isa majority of Congress Jess to bo trusted than one man? A bare majority o¢ this House might seloct a presiding officer. for the express purpose of counting ina candidate. Is sucha creature of an hour of more or more trastworthy than the wisdom of the two houses? OPDNION ON THE XLECTION. ‘The audvence caught eagerly at any words which seomed by implication to reveal Mr. Conkling’s opinions on the merits of the Presidential question, and there ‘was some sensation among the republicans when, al- lading to a former Senator, Howard, ho spoke of him as one who, like himselt, bolieved in tho glorious achievements and the glorious destiny of the republi- can party, He had not finished when he sat down; indeed he had touched but one of several points which he meant to cover, and the remainder of his speech will be heard to-morrow, the Senate meeting atoleven. But what he sald this afternoon bad a great effect upon his listeners, force PROBPECIS OP THE BILL. Thia Delieved that the dill will pass the Senate by a threefodrths vote. Mr. Edmunds gave notice that ho ‘would insist upon a vote to-morrow. The opponents of the bill are discouraged, but very bitter, and they are preparing toconcentrate their eflorts upon the House, It isnot true that Senstor Gordon intends to vote against tho bill. He-does not like it entirely, but be will vote for it asthe best attainable measure and as necessary to the welfare of the country. DEBATE ON THE ELECTORAL BILL, SENATE. Wasuixcrton, Jan. 23,.1877. Tho Senate to-day resumed consideration of the bill reported by the select committee tn regard to counting the electoral vote. SPRECH OF MR. SHERMAY. Mr. Snerman said when the committee was ap- pointed by both houses of Congress to take into con- sideration the count of the electoral vote he expected, as a matter of course, that in case the committee agreed he would be ablo to vote for their bill, He had the Inghest respect for the members of the committee, and it was a painful thing for him to dissent trom the views of gentlemen whom he esteemed so highly, but after the brief examination he had given the bill he felt it to be his duty vote against it, In dissenting from tho views and crivicising the work of the committee he desired at the outset to express for the motives and work of the committee his sincere respect. The vil before the Senate was designed to settlo a case now made up. It was a bill to make @ court to decide a.case already mado up. No ono favors this bill as pormanent legis- lation. He argued that there were provisions in the Dill totally incompatible with the constitution of the United States, Such a lawas this would be an-evil example and Senators should carctully examine to see if it could be supported by the constitution. The only persons who wero authorized by the constitution to ‘witness the count of the olectoral vote were the Pres- ident of the Senate, the Senate and the House of Rep- Fesentatives, QUESTIONS IN CONXECTION WITH THX VOTE. Up te this time the four questions discussed in con- nection with the counting of the electoral vote were:—- Firtt—Shall the President of the Senate count the vote? Second—Can either house admit or exclude a vote? Third—Cau both houses, concurring, do s Fourth—-Can the Vice-President decide if the two houses disagree? hi PROPOSITIONS OF THE BILL, ‘This bill presented other questions which wore of » more grave and serious character. “Tho committeo bad reported here a bill which contained four propo- sitions: — First—That the President of the Senate ms nothing to do but to preside over the joint moeting and open the certificates. Second—One house cannot reject a vote, Third—The two houses by a concurring vote may do 0, Fourth—It provided for a grand commission, the de- Cision of which was to bo tinal until overruled by the concurring vote of the two houses. It was known by the select committee that in one house one political party was in power and that in the other the other political party had control The com- mitteo knew that in tho Senate three members of the majority and two of the minority would be appointed members of she commission and iu the House of Representatives the samo rule ‘would be followed, thus the mombers ot the comnris- Sion, representing each house of Congress, would ee loam each other, He did not say the members of the com tons and docile isutvers eecsraing ts laey tes sung five motnbers vl the commission were to be Judges of ve Supreme Court, He denied that the four Juuges dougnnted by tho bil were selected account of teal Tt that was the case, it was that vast eng lying be- the Mia. arg that “te four Ji we ‘wore selected on account of their peinuall opener two either party. The dith Jocas’ aud ry of the commission was to be de- to | HERALD, WEDNESDAY, JANUARY 24, 1877.—TRIPLR SHEET. not like that. If he was to choose between this vill and war ho would accept the bill, but Le did not be- leve there was apy danget ONAL QUESTION, yy author'zed by this bill the judicial power of the constitution, It was to bea political court, and was.not autborized by the constitution atall, He thought the bili was traceable to his triend, the Senator from Ver- mont (Mr. Edmun because in adebate a year ago he shadowed the very propositions of this bill Mr. Sherman denied that Justices of the Supreme Court (also officers of the government) could be thus catled upon to fill other offices, as this bill pro The practice had been in such cases for the President to nominate such officers and the Senate to conlirm them. If one officer is designated to perforin the duties of another he must be confirmed by the Senate. DELRGATING THE POWKR OF CONGRESS. Another objection he had to tho bill was thas it uo- Gertook to delegate powers conterred upon Congress to ® commission. It was an axiom of the law that legislative powers could not be delegated. This bill was intended to apply to a case already passed, ended and concluded, and was unconstitutional on that ground. IU the power to le; te could not be deleguted by either house of Uy how could this power cun- trolling the vote of States be delegated? This cnor- mous power which could undo the work of the State could not be delegated to a packed tribunal, Another feature of the bill, in bis mind, violated tho spirit of tho constitution, which provided that vo wember ot Congress could hold an office created while he bad @ seat in Congress, The members of the Senate and House on this commussion were uot, hike other committees of Congress, to take depositions and report to their respective houses; but ufter betug up- pointed on the commission they were independent of either house of Congress. He argued that the Senate delegated all of its power to the committee of five and the House did the same, and that power could pot be withdrawn. it was bardly ssibie tbat this power would be abused; utitit should be Congress would be compelled to stand by helpless. He argued that the President of the Sonate nad the std Ww open and count the elec toral vote, and this bill was an attempt to change the ‘imple habits of our toretathers, which were adhered to until 1865, when Congress, without consideration, without dobate, adopted the twenty-second joint rule, but had now got rid of it, Suppose the judges or the Supreme Court should refuse to pertorin the auues imposed upon them by this bill, Congress could uot compel them to do so, lt was simply tmposing upon these judges a troublesome and paintul matter without defining their power, Ifthe Judges should dechpe to act the scheme would be at an end. ACTION OF TUR COMMISSION. When the count should take place and the State of Florida was reached, must the commission take the certificate ot Governor Stearns or the subsequent deci- sion of the Supreme Court of the State? What would be done wn the case of Luuisiaua’ Would the commis- sion accept the certificate of Governor Kolloge, the rocognized Governor of the State, or would it inauire ag to all the buli-dozed parishes and open up the wholo case anew? Would the commission be bound to take the cortiicates of the legal olllcers of the Suates? Why did not the members of the committee have something to say in regard thereto, If this commission were to take votes us certitiod, everybody knew who was President, but if they were to go back of tho returns God only knows what would bo the result. It would depend upon the boo in selecting the fth justice of the Supreme ur Mr. TuuRmaN, (dem.) of Ohio, seid the bill sensto the commission ull questions of law as well as of fact, How they would decide no mortal man could tell. Mr. SuxamaN—That depends upon chance in the Supreme Court, Continuing his argument he sald:—The Sonate was now asked to voto for thw bill, which substituted chance for the vote of the electors, given according to law. He contended thas th ed toa secret conclave the power to clect u Preside! it was a col- lege of cardinals for that purpose, While this commis- as to how ‘sion would be in scores session vonsidert the vote of Florida must be count of Now York, Pennsylvania and On uncounted; the people would bo in ment; the controversy would be di ed, beoauwe the very bill provided machinery tor delay, He had nodount meinbers of the commission woula endeavor to do but this imposed upon them im} io y was the power of tho President of feared ? — act of bis in counting the be done in public and would be clusely ‘d; but by this bill that Hates was giver ton secret committee. Suppose this high commission should reject tho vote of aState. It wovld be depriv- ing the State of its vote. Where was tne clause in fover of excite- their tull duty ; ble dutiow Wh the Sei the constitution conferring that power upon anybody ? He submitted to the Ser thas it was meet to count the vote as it had been counted heretofore, as it had beon counted twenty-two times during the bistory of tho ernment. It was bigh time that the extrome powers claimed tor Congress 10 reject the vote of a State should be renounced justead of affirmed, as this bill proposed. Mr. Stevenson, (dem.) of Ky donied that tho com- mission authorized by the bill wae a scoret conclave. Mr. Smerman said tho bill guvo the com power to make its own rules and overy one kuew ‘would be secret. He only ved of one feature tho bill, and to reject the the country was in peril, and would be do nothing save the country? Yes, he would obey the law as it existed since 1789. He was opposed to patching up Jaws and introducing into our electoral colleges the blind goddess of chance. If Tilden was clested ict bim, by all means, epjoy the honors of the office ; and if "Hayoe was elected should yteld to him a lawiul obedience, SPEECH OF SEKATOR CONKLING. Mr. Coyxiina said:—Mr. Presipent—Boforo roach- merits, we must make sure of the power in some modo to subject the matter to the action of the two houses or to the law-making power. A study of this question years ago convinced me of the right and therefore tho duty of Congress, or the two houses, to ascertain and verily electoral votes and declare the true result of Presidential elections, or elso by an exertion of the law- making power, to declare how these acts sball be done. My present judgment, I may say in passing, does not rest wholly on preconceived opinions, Some wee! go, when the inquiry seemed likely to assume unprecedented importance, I reviewed carelully, conscientiously I hope, every act and pro- ceeding in our history bearing upon it, and, without the aid then of compilations made since, every utter- anco in regurd to it to be found in books. A distinc- tion may be drawn between the power of the Senate and the House to act literally and directly in conduct- ing the electoral count, and the power of Congress by Jaw to provide for the proceeding in any mode except the literal and porsonal action of the two houses, It 1s not my purpose at this moment to ex- plore that distinction, or to inquire how far, or whether at all, the constitution inculcates the exact modo or form in which the two houses shall execute the twelith article of amendment, CONSTITUTIONAL PROVISIONS, Ifthe constitution means that the two houses aro to ascortain, verify and declare, or if 1t moans simply to command that the votes shall be counted, and leaves {ove denoted by the luw-making power the mode in which that shall be done, the bill on oar table executes the constitution, If the true meaning of article 12 is that the houses themselves shall do this office the bill doos not overpass the constitution, If the true mean- ing is that the act is ordered to be done, and noagency is expressly designated, then the law-making power is told how to proceed by the eighth section of the first article of the constitution im these concluding words :— The Congress shall have power to make all laws which shall be neces#ury und prover tor carrying into execution he foregoing powers und ll other powars vestod by se constitution in the government of the United dtates or in any department or officer thereof, If, however, the power in question is deposited by the constitation and js not deposited with the two houses, neither the bill on the table nor any bill, rule or plea secking to draw it within tho province of tho two bouses or of Congress is of the slightest efficacy or effect, Whenever the constitution deposits a power with any department office or functionary thero it i aud there it must remain while the constitution is our guide. If the constitution deposits this power with you, sir, the President of the Senate, there is the end of the ques- tion as tothe two houses and as to each house, The law may regulate the modes in which you shall executo your power; as for oxaimple, direct that you shall open the certificates of the States alphabetically or other- wise, vat uny act which strips or attempte to airip you of your power, or an jota of the power which tho constitution gives you, or which attempts to put anybody in partnership with you in ihe —_ exercise of that power or any part of 16 utterly vold—a bold Intrusion upon the con- stitution. If such be the mandate of this fundamental law every rule, every resolution appointing com- mittees trom 1793 to 1869, every proceeding taken by tho two houses tn this regard, was a flagrant intrasion Upon the constiytion and u usurpation of powers withheld from them. It has never been weriously con- tended until ui late—it never was seriously contended util we bad a caso on band, if | may borrow a phrase from a.diatinguished statesman—thut this power be- Wop; ole house alone or to one house more than to another. jose Who challenge the competency of such @ bili mafmtain that the powers reside in the President Of thle Souate, ' POWERS OF THE PRESIDENT OF THE SENATE, ‘This question I propose jamine by the text of the cunstitul aided by the settled rules of construc- tun, by the opinions of the most illustrious men of four generations and by the practice and acquiescence of the nation and of ali the departments of the govern. ment for oighty-seven years. ‘Ihe Presdent of tho Senate is clearly the ta whom the vtors are to transmit their doings ond tho title of their olllc The itution requires tho electors to meot in States under certain restrictions, ident and Vice President, to mi & certificate and stntement of rooeed! transmit it seuled cap of tea, were hardly | the Chief Justice excluded? He (Mr. Sherman) did | Senate the choico of the President in case of a failure by the electors to elev. bo a plan was admitted, ls was changed many of iis features, Its leading leat was rejected; but, as we usually muke a bill, however objectionable to the ! action in con sidering it and change it by amendments one vy ane, ‘so this draft remamed betot o Convention aud was not discarded totally and a new one substituted t it, Ove of the provisions which escaped a change was the designation of the recipient and custodian of | the ral votes. The power to choose a President: iu the event of tailuro by the electors was transferred to the House of Representatives, but the custodian remained, The reason, the will occur orginsiiy selected natui to every body. dent ia the event of a ialure to elect it was natural that with the presiding officer of the Senate the vot should be lodged, With or without this ray of light however, as to tho dosignation of the custodian all Will admit—it will not denied—that it any other | tunctionary had been desizuated by the same words employed, had it been the President of the Unitod States, the Secretary of State, tho Speaker of the House, the Secretary of the Senate, the Clerk of tt House, designated by tho same words standing int constitution, his attributes, bia functions, his prerog: tive would ‘have been precisely that wherewitn you are endowed, neither more nor less, This orings me to the laagu of articie 12 The electors are to transmit their votes in soaled packets Tho contents ate to be secret, this there was a reason. Originally to the discretion of the electors as a Wine, sazacious and Unbiased body of men was com- mitted the wide selection of the Chief Magistra.e, ere to yoto by ballot ip order to aver denoung | Under the protec: f a seal their votes are directed to be sent to the President of the Senate and by him kept, and kept inviolate, until they are needed, und then to bo pro- duced uni oponed, , Following these words we read: ‘The President of the Senate shall, in the preseuce ot the Senate und House of Reproseutatives, open ail the certill eutes, and the votos shall then Ue counted, A familiar maxim of the constitution 1s, that mean- ing And effect mast be given us tar ax may be to every word, This 18 trac of the moat trifling agreement be- tween men. [t must be as true of a frame of a gov- erpment tuboriously, devised and designed ad au oternul wedlock between peoples and States, Perhaps the first question that arises 13 the significance of the words—*'Ip the prosence of tha Senate and House of Representatives,’ The importance attached to them may be vleaned trom occurrences im the First aud Second Congresses, in which sat eighteen of the thirty. nine wen who made the constitution By an act of Congress they required that on the day when the proceeding m question 18 to occur the Congress shall be 1p session, WITNHSSKS OR BPRCTATORA? For what is the Congress thus (wiee required to be In session? Obviousiy tor some act, or that ts members may be spectators, } canuot say witnesses, for it tho whole procecding ts to be conducted and dotermined by one man, 11 ts not easy to Bee how, n any effectual OF loyal # the members can witness or verity tne proceeding. If the President of the Senate chovaes to say wnything they may bear, but nothing requires bim No declaration in the end even 1s re- to speak a word, Tho whole thing may be quired by the constitution, in silence; but if he chooses to utter words ihe mem- bers of the houses may listen to them, notwith- standing that the proceeding ta wholly hia He takes upapaper in his seat and peruses it as be would peruse a letter. The members trom the body of the uit gazg at the spectacle as they might gazo irom the galleries, and with no more power to kuow the ve ture, the figures, the seals impressed on the paper than the concor which sees the oath of office adminis- e Capitol. It must, however, be admitied words standing alone may bo sutis- | fled by supposthg that the two houses, vow numbering about 400 men, are to atiend with their officers as spectators of a pageant to sce ana be seen as gazers on uw scene Wherein they cau act no part. They may know or suspect a forgery or an error in returns, but if the power rated in tho Presulent of the Senate to conduct und dotermine thocobnt, thy two houses aud their members have no power to us- sort the error, much loss to arre IT say, stop- ping bere, it must be admitted that effect may be given to the words I have recited without ascribing more moaning than that I havo indicated. The iext pro- ceeds :— ‘The President of the Senate shall open all the certificatos, Thero {s no room for construction hore, This isa plain grant of power to do a certain simple thing and a direction tu do it, Now the guage changes, ‘Tho President of the Senate” ts heen ae again appears, aud the votos shul! thatis,4 count of the vote shall then take plac That 1s what it means evidently—a count of the votes Bhallthen be had, ‘*I'he votes shull then be counted.” By whom? As two Senators was it not sail “by him?” men who drafted that paper—masters of lauguage us mostOf them were—wero so fastidious In taste, so seru- polous in tho execution of their work, so determinca that words should vecome exact vehicles of thought, that they appointed a committee on style in order that every syllablo might be serutiuized, Me. Pr dent, would men ordinarily in language have expressed themselves bad they intended that the President of the Senate should count the votes? The President of the Sen Hl, 19 the presence of the Senate and House of Representatives, open ull the certiticates und count the votes,” aro the words in which ninety «i nine men would naturally have poken. ad they sad, “The Senate shall count the votes’’ simply, beon plain. Why? Because no man cun count or cxatmine the contents of a sealed packet thout opening it, and ‘there, impheation would ve made all plain. So, had they said ‘open aud count the votes.”’ But no, he ‘shall open all the ver- tfleatos, and the votes shall then bo cuunted.” Why “then?’? Ifthe President of the Senate had to open and count; if it was to have boen at ouc time, in on place, by ono person, all parts of it must be ‘then, must they not? Why twice a8 many words as were becossary, when the effect would be to bewilder at least, if not mislead the reader? The constitution ts terse, santentt ® model of comp e brevity. In the first instance these words, ie presence of the Senate and House of Representatives,’ were proposed, not before the word “‘counted,’’ but after the word “‘counted’?; so that it would have stood and aid stand, “ ‘otes shall then be counted in the presence of tho Senate and House of Representatives.” In the earhor consideration the words sv standing were accepted; adopted more thaa once, At length the provision was referred to the committee on style, and in passing I bog leave to in- quire for what purpose? ‘To change the meun- ing of those who, by little accretions of concurrence had led up, step by step, with patience and with care, the various branches of this great fabric, which was to tower #o high and lust so long? Was the purposo of the committee on style and ite referenee, I ask, to change the meaning ad casonce as it bad been agreed to? Ob, no; butte aetine it more sharply, to project it more distinctly before the minds of those why, in a far thereafter, would appeal to this instrument as their chart and compass. When the comimitteo re- ported these words to the consideration of the Goo- Vention they stood as they stand now:— Open all the certificates in the presence ot the two houses and the vote shull then be counted. Was itever, in all the scrattoy which these words underweat, proposed to commit it to the President of the Senate? Were any of th ms 1 have sugy Xt or otber jorms clearly denoting that ever provos ull? No, sir; but, on the contrary, alter all this care, the words, a8 We Bee them, were adopted ay the last most dehberate consummate act of the constitution. Bat if we read these words several intents appear in dropping the President of the Senate and employing the presont phrase :— VOTRS TO BR COUNTRD, “The vs all then be counted”? What votes? Not all voi ‘All the certificates’ are to be opened, but not all the votes are to be counted. ‘The votes’’ are to be counted, What votes? The constitutional, vuiid, true votes; ot six voies from Oregon, although six ap not necessurily the th es curtitied by ‘nor of Oregon, ith the certilying | by the uct of 1792 and the only certitying officer | kgown to the nationul laws, but the three honest votes, i there are three, Counting and ascertaining becomes substantial, and we see reasons tor 60 muking tt il wo recur only to tne exclusion provided by the constitu. tion, The honorable Senator trom Jn a yesterday ob- served that his view 14 thet the President of the 18 to count everything, Mr. President, | cannot | speaking of the | proceedings ia question, thal shalt be session on the second Wednesday in February, 1 and op the second Wednesday tv Fevruary succeeding every meeting of the electors, and the suid certili- cates,” or a8 Inany Of (hem as shall have been re- ceived, shall then be opened, the votes counted, and the persons who shall {lil the vilices of President and Vice President ascertained and declared = agreeably 10 the constitution. | The constitution names five istances in which no majority of votes shall work the ascertainment to fill the office of President of the United States. Was ib designed that votes cust for one dead should bo counted, and that he should fill with au aching void the office of President of the United state: as 16 desigued that votes forged should be counted, votes not certified, or certified by a usurper blindly and without inquiry? Was it dpsined, if lying on our | table be a record denouncing against a con- | vict, On impenchment, perpetual exciusion from | every office of profit, emulument or trust, that votes cust tor him were to be counted and made offectual, because, although not | Pn they might be bad or indifferent? No, Mr, ‘resident; shouid the State of Massachusetts send bere an electoral vertificate on which should appear as the first two electors the names-of ny houores friends the Senators from Massachusetts, aud if there should fol- low as electors the names of every Representative from Massachusetts, bey Soha them anu bin respoce tively and senators and Reproxeniative, | should read Jo the constitution that “no Senator or Representative shail be or shail even be appointed an elector,’”’ aod I #hould say those votes, altuuugh they might be bad or might be indifferent, ‘were not to be held good until they wero at least cousidered."’ IMPLIED POWERS, But it bas beon said that tho power of the President of the Souate, though not expressed in the coustitu- tion, may be implied from that which is oxpressod, It hug been said, 1 think, tho Provident of tho Senate may, in a closet or in ponth ta wd- vance, adjadg: the electoral populo but that one must States, and he would take but ona, The Pi the Senate, dircharging, a8 he customarily does, with conscieuce and propric the duties resting on bun, bas aircady, an | am intor Teceived cont certiticates irom the three or four States from 1 bave beard no one ai that, having it will be bis duty to suppress or con- cewl them, and, t I to conmder her, by implication, he has the power to adjudzo the count, to determine what shall become of them, ‘The arguinent, | may say hero, ag | understand it, 1s of implication from aa implication First, that because | trom that aupiied power may ve implied that be | isu minister act, and very simple. the President of the Senate is the ¢ certilicates, and 18 directed to o| implied Wat ne has power t ustodian of the iv may b: nit count the power to determine then, Irom the ¢ what si be counted, #0: the nnphieation, eflee! that be has pow 1 of tbe coant | aud whatis counted, This view deverves consideration. 1t has found po voice m this chamber, ; Now it isa view against whieh, if | misake pot, ry member tn this body on both sides, save two, nds on bis oath recor jee in this debate, bur T accept ot Tespeelfully ae @ suggestion to which [ should tisten because be- youd these walls the thought has been ¢ those whose words aud retlectious passed by. ‘The doctrine of tamplea stands unchangably tn tie law, may thus be stated — Wherever power ts siven to do 4 thing permission as tm: plied to w rrr What © the fall execution of enjoyment ot a smi implied or ed to be granted also, Life is full of Silustrations of this spect ment. A spotot grountl iy granted m the midst of a fold. It 18 Imphed that the grantee bas granted ulso @ right to pass over the intecvening grognd woh, When the constitution peorides that i$ May cold Money, may borrow money, May lish post offices aud post roads, the power is im. to use the Ways and meaus and, accordingly, to banks, to aoquire Feat ply establish minty, to establish estato im the States w Woiliees inay be built, ‘That is th trine Of implication as declared by tho old Supr Court, with Marshail aé its head, i M Culioeh vs. Muryland, Watson vs. the City of Charle citsee since ton authorizes the President nor ur Legislature, to sond tr fo iu him to tuquire and determine contingency bas arisen, said ihe vurt in the case of Mott vs, M 1 Whate ently conudslve tv the execution of a granted power may be interred, but the verniuus and boundaries of the doctrine of implication are as cer- thing 1 law ean be when the act wih pertormod, whe has been done, t cation and the end of the Wholy trait expressly au- rybbing auxiid- 4 end of imph- Ivy the end of law as ho is in reason, and in reason an impliod und involved in id expressly authort Expross ies power to du 3 whatever veen completed. Ex: One species does vor plication authority to do an act of another The authoriy to do a ministerial act does not power to act judicnily, Authority to act as the wuthorized bay 18 of soverciguty ermination, A clerk {0 court is made by saw tho recipient of It is directed Uhut they shall be seus under Pretain them until « and carry them into papers. seal to Lim and that be whon u court ty 1D sesyi aud open them and open all” ot thom, the statute declares, ‘Then = the contents thereot gual! be passed upon,” or the tacts found whereot they “the proceedings be disapproved or approved ' or ef- fectuated,” Would it occur to any ono that such a statute meant that the Clerk of the Court alone, or the Chie! Justice alone, were tu proveed to pass upon whe papers or to find the (acts of which they were eviden- lal, oF to approve or disapprove ¥ Let me change the itlustratiou. Suppose the con- tenis of the packet, in the instance suggested, were summonses or Wurrants, aud the Sheri! was made tho custodian, and the law declared that should open them in court, and said, these writs snall then be — served.’ should we know Who Was to serve them y aro evidential,” or How ‘the appro- priateness of the Sher? would suggest him, but tt would only suggest him, That is not the reason we would know that the Sheri way to do it because tho law declares that the Sueruf shall serve all such writs unless he ts an iuterosted purty, and then the law de- clures somebody else shall do it, But suppuse, iu this iustanoe of warrants or writs, the statute declared “ind the validity of the writ shall then be passea upon,” althougi the custodian be the Shoriif suoui we suppose that the Sheri? was to doit? We shuld know that the court was todo tt, Why? Because it 18 Judicial, and the law dovlares that judicial functions pertain to the court. Mr, President, apply that rule to the case bolore ua, We know tho nature of the possib.w imquiries involved im the occasion, Cominitioes tave goue tar and wide toconductthem, My distinguished tread from Wis- consin (Mr. Howe) has pained us by his absence for weeks because deputed by the Sonate iu a distant State, Day alter day taburiously he has been con- ducting them, I shall have occasion to show, if 1 do not weary tho patience of tho Seuate, that the framers of the constitution woll knew and gravely pondered the proviems which would arise for solution, My Present inquiry 18 whether the Presideut of the Senate i8 sO equipped for setthog disputed questions of tact, is so endowed with facilities for solving problems like this, that reasun and Intondment point to him alone ag the tribunal. ‘The person having the largest number of voies—of valid legal votes, be it a majority, is to be the Prest- dent, The question is, Who shail filtho office uf Pres- ident? The constitution bas named, as | sald, at Joust ve cases in which, eunesth a majority of votes be given for a candidate, he shail not Mil the offive of Presivent—unless ho be a native born citizen; nv por- gon shall fill the office of Presidunt unlers he has at- tained the age of five und thirty years; no porson All the office ‘of “Prose ident unless he been fourteen years a resident of the country ; no porsow.shall dill the office of Prosident chosen by the voles of electord who vowed another person in the same Stato tor Vice I no person shall fill the office of President who, hay been impeached by tho grand inquest of the counw has boen branded by the votes of two-thirds uf Uh body and immutably disqualificd, POWRKS TO NE KXERCIED AND HY WHOM, These questions nay arise, Higher questions may arise. Hus the President of the Senate tho power to send for persons aod papers, to swear witnesses, to compel the surrender of teloyram id imprison witnesses it they will nop. gr them up? Who bas that power? Who when the constitution was mado? Was there any vody who fambarly, im the two bemisphores, had wiclded such power? Yes, air, the British Pur- liameut for ages had been tho power to judge of tho election, qualifications and revuros of viticiula, Tue State legisiatures on this Continent had done the samo thing, it bad been customary tor the lords and com- mons to assemble in joins contereace, und their rules of sxteen hundred and odd—I forget the exact year— stand, 1 believe, yet. So, after our constitution was adjusted, it was customary for the Senate and House to mect together to receive the Messace or speech of the President of the United states, ‘The two houses Of Stuie Legislatures assembled to- gether; they do to-duy familiarly, not only to elect regents of universities, not only to chouse Senators tu Congress, but to sce opened, to canvass, to ascertain, to determine tho count of votes wud the results of elections, The honvrable Senator (rom Olio (Mr. ‘Thurwan) sits before me, and that reminds me ot a memory, iu which, If wrong, I hope le will correct me. My recollection is tat us oarly as 1802 the state of Obto bad 10 its fundamental law the very words of our constitution: —“The presiding offcer shall opoa the cortiticates 1a the presence of thé two houses and the votes shull tuen be counted.” Is that ity Mr, THURMAN—Pretty nearly, Mr. Coxkiinc—In substance; and I ask the Senator from Obie tu correvt me if lum wrong in saying that evon at that carly day, and always during the main- tonance of that constitution, It was the setted and im- { contested understanding (hat the presiding vllicer merely opened the certificates, and that the two houses of the Legislature together proceeded to count or canvass the votes, Am I right in that? Mr, TuuRMaN—That ts right as to the Governor, M MUNDS-—The Chief Magistrate, Mr. su—The Chiet Magistrate of the State; and the Senator reminds mo tual was unprecise in Stating the officers to whom this provision appued. Indeed I supposed tt was to apply to all State officer Lusk, then, whether the meu who employed the we “aud the votes shall then counted,” kuaw of a trib of body having powers und tncultics adequate to conduct of such a proceeding THK TROK wv Tt has beon addition of units; theret 0 wid 14 heeessary except cum- mon honesty and cominon sense, I do nut uudersiand the word to be 80 employed im the constitution, A count may be of diferent kinds, To count my ingers To count a pile of papers is a ministerial ack, ‘To count bank notes in which there may be counterfeits und separate the truc trom the faise 19 more than « mivisterial uct. Ib requires judgmont It involves faculty, ‘tu “open all the cortiticaies”’ 18a ministerial act. As my hon- orable friend from Vermont (Mr, Edinunds) suggests, as 4 porter might open d bale of goods, so It 8 ao purely minisicrial act, But to count tho votes 18 some- thing more. Why? #All the certiticates’? are to be opened, but not ail yotes are to be counted, The valid constitutional votes and ue other are to be counted, 4od Who counts them with bit juni bis hand mast winnow the wheat from the chal, If New York senus here 46 eiectoral votes, ax they purport to be, they aro hot to be counted, beciuse New York is entitled to only 85 electoral voles. They urpg to bo sorted, The bad =oaod = indifferent «ure =6to0 be sorted from the good, and only the 35 true constitutional vowes are to be counted, and they who were intruders in tho cullege, their names to the roll, did ws act upuuthorized and therefore void, If the certificate trom daxsachuseuts should sbow that the votes were cant tor the demu- crawic candidates, the world knows that Massachusctts voted tor the republican nominees, uod thereiore tho eertiicate 1s not to be blindly counted, nor counted at ail without inquiry and veriication, If eectoral votes are cast tor Jaitus Cwsar—I mean Julius Casar tate of Rome—or for Harry the Bightu, or « Britian subject, they are not to be counted without inquiry, And here I am rewioded of an tit difference Lewween these two kinds of counting, an Miustration by which I uflered myself, it i is possible to suffer in these times, Jo 1873 tour elector of the State of Georgia voted tor Morac What was the objection to that? Why should they hot voto for one of the mos! iment men that over velonged to rn country? Why ® great jon of the ob BUppoKes id att organization ?'* 0 to belon; to any = “healthful at was tho ora’ ur electors had voted of thove votes. I object be- at Mr. Greeley was vuried on u y ob which these votes were vant.”’ Lat me be more explicit with the Senate in stating the process of the member who made the objection, Fully translated tis staveme as | The certificate is blamotoss on its State bebind it—no question there, T repeat, it has found no | of iutend- | or ignorantly udded | ‘Mr. Greeley was baried said that he was buried mption i that he wag , dead in that partot that Les were cast. | papers have announced th: } op such aday = Nobody Therefore the pi Ht dead that o in these alive af ‘Wwe houses se} ed im this House The henorable Senator Vermont (Mr Ed | munds) proposed a resolution declaring that hore Votes should not be counted, The Senator trom Obto betore me (Mr Thurman) moved to amend by striking out the word “ not,’? which amendment pre vailed, Tu | resolutions, whic | tor Mr, Gevoley | the muction of th | to be mimimterial as that court Sal have that | had expressed the pinion that counting any votes In any sense within power of whe (wo houses was purely minietorias, no, Mr. President, 1 ile ih counting the vores ot from the effect ot y they meant erated; that they counted rely that they should be enn should be cod; that they should be added Up; nota vote tn the language act of 1702 thas should underta tare U should Til the odtee of t of the Uuitea Staves That AmondMsnt encoun.cred a point of order, The Sonate Fuled that it was 10 order oaly to answer the question, | yew or no, shail the vuio be counted? Mean while the House had considered, The Honse said the vote should uot be counted, and th | was withheld from the memory of Mi tribat a tribute from Georgia, man ay having | cen cast for hin Trofer to this te distinguish, as L do in my own mind, between counting the chairs in tl chamber and doing that whieh 1 sUitutional direction touching the THK JUDICIAL QUES Indees!, | may say that the wor | govern so much as the words | power 1s not technteally jadieral, | Greeley the be, of having tour votes arithmetically calculated tt Beeuuse the question dues not arise in a judicial proceeding. It ts quasi-judicial Mas the power to jadgo, [tis the power by judgment to affirm — truth and tact. The power to judge whether a bill shall pass or not is judicial Leis not ministerial, in thts case, Mr. President, is political, Yoa, it political, "It nvoives the exercise of the very highes attributes of severeigus. When Colorado is reached, Suppose « member or Senator rises and says, “1 object to the vates of Colorado, because sho is not a State ia tho Union,’ Ta the case of Colorado there ty ne doubt but the question is the xame as if abe were shrouded in doubt—the question ty shail her vote be counted # The objection t% that she is not a | Stato im the Cuion, and the count or retusal | to count that voto is the response to that question. No higher political question cau be solved or touched, ‘ Issxhow State fa law and im factY Mr Prosident, nations have fought over that question ior centuries, A Stato to-morrow may stand under tho uphited ban+ ners of revolt, Sho imay pasy an ordinance of seces- sion, prostrate all tho forms of government, make treaties with foreytn nations, seize the putts, arsenals post oilices, custom houses, dock yards and ships of he nation, march an army into sister States, Shall ber voto be counted f It no answer to say the law maktug vower may fix ber status in advance, The aw making power may not act, May Not have time to act If tho law making Power acts AG hor certiticato 1 here, the question shall her votes be counted and he who has the power to decide that question may decide it as he Lists; and tho effect of what the !aw mmakiog power bas done ta only a factor in the open question, Me, Koauxps—An indeterminate one at that on thie theory. Mr. Conkuixo—And, as my honorable friend well says, un inuetorminave one at that on this theory, — It {s not proper tor me, as | was about to uo, to roler te what may be done in another legislative chamber, Let me suppose, Without an assertion, that a minority, | formidabie in numbers, of the Law Committoe ot the House of Representatives have reported that Colorade 1 Mot 4 State; that she 1s inchoate, Inconsumiate ay A member of the Union, ber statehood being in the chrysaitx, and somo member of that cominitive tuakes objection bere, Tho law making powor bay acted, but the Senator trom Vermont may woll way ‘It 18 indeterminate, It the — constitutn Feposes In you, sir, the prerogativo and duty of dew Tuining What Votes shall be counted, who aro the mem- Vers of tho sisterhood of statoa by whom the Cw! Magistrate ty to bo olected. Whether you might weakly loan upow the opinion of somevody else, or nut, I will not consider; you, und you alone, at first aud at lust, are to fe that question, od, afb were to accept What was said by the Senator trom Uble (Me. sherman) th noraing £ should begin to aoudt mysell whether my ehermned triends trom Colorado are members of the Senate. I understood the senator from Ohio to argue twat the two houses by law cant enact in advance that, ou the happening of u col contingency, @ certain legal verity and con should o: Ho stated that most expiettly derstood It that be true, awkward indeed would bo tho dilemma of Colorado, Congress, by aa ouabling act, authorized the then Terr ot Corrado to agsume statehood, provided im advance that, upon tbo happening of cortuin contingencies, and proclamus Hon thereol to be made vy the Pro-ident ot the Vaned States, sho should be crowned with statehood wih | Wke toree and effect us if sho stood complete at tho bour when tho act spoke Presi. dont hus = maue the — proclamation dou wal oth comtingency, and by the uct of Gor er speaking When the condition is complied wit Volorady is to-day as complete tu her rguteas w member of th Union ax is tho proudest or most ancient State in wsterhood, But my honorable iriend trom Obio tes the doctrine By which sho ts here, My houoradle irwad trom Unio conironts and combats the Supreme Court, because that court, | ears ago, aillrmod, in the omburge caso, that suck logislation was ent Icompetoat—tacompetent, inconclusive, provisiwaal—uutil tho happen of an external coutingeney, and ripening aud becom'ug et feotual then, Mr. Evauxns—According to the judgment of the President of tho United States, Mr. Coykiinu—And as my friend reminds me again most rospecttully und so becoming according to tho Judgment of the President of the United States, Bul, Mr, President, | have wandered very tar from what I intended. [meant some time ago to say that ‘the scope and vastness of this power and of the ques tous «and posmvilities it has evolved § are the meusure of tho certainty and clears ness with = which = its must = be conferred, Lvoso inteadments will not do, Loose inteudinente | may suillce tor paltry uses, but tn the last quarter of tho nineteenth century loose intendments will nos suffice to convince 45,000,000 freo peuple that such transceudont powers aie 10 be wielded by ope man, and way be made to-day by a mere majority of voves tn this chamber aud unmade to-morrow by tho chanye at & single vote. RKASON AND PITNRSS, Mr. President, docs the rersou, does the fitness o things inform us that our fathers inteuded that the power to vitiate, on the allegation of traud or ir larity, the electoral votes of the States and thu: turn the scale of Presid “ tial elections, was to be re posed in one inan a4 # salor and Letter repository thas American people in Congres a: D on, dues the fitness of things lect, from law guage which = tu away from the Presiden of the senato and drops him, the ite that to that functionary alone, oven if on in were selected, it Was designed lo commit thn | vast power? Again, does reason suggest thus our fathers Jn selecting onegman to adjudge such questions, wolecter him that might be the sole judge in bis own cuse; SIX times already has the Presidout of the Souate bees ony of the Presidential candidates for or against whow the count was to be ma Dvd our fathers, who wrote (bis instrument, wnticipate that? Tho very mes who tude it proceeded im sevon years to muko tue President of the Seoae their own Presi: dontial candid our fuihers, protoundly zeal | acts, show they were of human greed and human am bitivn, intesded to make ony inan the sole judge whether he should mount the leftiest pinnacle of American, tt not of human, am gay we bad under cousiderati & constitutions amendment, committing to ning judges = how ing their commissions tor lite,“ and as inde pendent of us as jhe wonarch of the skivs, the count of the Pri votes, and providing | thas kot ono of thom should ever be eligible as a Presidential candidate until atter the lapse of yeare This is tho inodern standard of safeguard against am. bition; but we are asked to believe tuat our lathers, Fained men and the Victine of abuses under other owns, decided to make one man the Qnal supreme judge in bis own case, aithough divine luw and bition, The other civilized = jurisprudence have declared = siuce the = mornii of time that no man ever shall be e judge in his own case, oven though he sits with other judges, and, as now iny oyé falls upon my honorable triend ir w Jersey (Mr. Frelinghoysen), 1am reminded that the highest court in hi Stace bas reountly decided Legisiavure, nu exercise of the legis! constitute a inan, although he may with othora, ¢ judge in biz own case, vo enormous is the omg | whon judged by common law, common etnies an cominon sense. Here we ure asked tu believe that to | selecting ove judge the tramors of the constitution ime pose bo disability upon bin to become the party tatere eatod. Nuy, they extablish no period of probation, but they proceed with their own hands to inake the sole judge, the party who may bo Judge. Wo aro wskod to believe 80 intended, although by or error be should undo the nation's wilt and overthrow the na ‘sright, The American people in Congress am sembled (because in luw all are here—every State aod every citizen is present, not two houses of Cougresa, even though tp their presence luw and right and trum sbould be overthrown,) could do anything but bow 19 the presence of usurpation and of wro: THREATENED DANOERS, But we aro warned that if it be held that the houses have this power the houses may baille the count; they may throw oat one State and another State antil no majority of all the clectors uppomted rematn, 18 possible, Every page of the constitution pre- it ances in which tho two houses of one M9 prostrate the government, One house may reiuse to pass appropriation bille or tax bills oF ‘Tho States may refuse to appoint Ppoint ineligible ts, The cleo tors may refuse to vote or may vote tor ineligible can+ didates. President of the United States muy re certificates of refuse to open them, oF to produce them, ‘the Gouverneur Seat nuak < $ Fejuse even of tho State may retuso talsoly, The houses may bs mas wo id soon, Lt all proves nothing. answer Jvifor. jae i) govern og ‘the ‘cousont of erned,’’ So must every government rest while tt stands at be whonever Is @ majority less to be trusted than one bare majority in this chamber in one @ Presidenvot tho Senate for the