188 



CONGRESS, UNITED STATES. 



Mr. Thurman: "I was aware that in the 

 resolution reported by the committee there is 

 a provision that Congress shall have power to 

 provide for counting these votes, and indeed 

 for much more than that ; but I, for one, am 

 not willing to confide that power to Congress. 

 I want the tribunal that shall count these votes 

 to be provided for in the Constitution. Wheth- 

 er it be the Supreme Court or whether it be 

 some tribunal created for that specific purpose, 

 whatever it may be, I want it provided for in 

 the Constitution. I do not want the laws that 

 are to affect these great privileges, that are to 

 operate on this great subject, to be at the mer- 

 cy of the dominant faction for the time being 

 in Congress, whatever party that faction may 

 be. I want it fixed in the fundamental law, so 

 that every party shall be compelled to obey it. 

 Therefore, with great respect to the committee 

 and to the able chairman of it, who has de- 

 voted so much patriotic labor to this subject, I 

 do say that in my humble judgment the report 

 is manifestly defective in this particular ; that 

 it will not do ; it will not cure the evils, and 

 the greatest of all the evils, that attend this 

 subject. 



"Mr. President, there is another matter in 

 this resolution that requires the gravest con- 

 sideration. It proposes a sweeping change in 

 the mode of electing the President of the 

 United States. I will not refer to the abolition 

 of the college of electors. I do not think that 

 is a matter of so much importance ; but I refer 

 to that change by which the President is to be 

 elected by a plurality instead of by a majority. 

 That is a sweeping change, that is a mighty 

 change, I may say, hi our mode of electing the 

 Chief Magistrate of this country ; and when 

 we come to consider the tendency to increase 

 his power, when we come to look at the facts 

 that show the mighty growth of executive 

 power in this country, it behooves us to take 

 care that we move slowly in the direction of 

 so fundamental a change as that proppsed by 

 the report of this committee. I will not say 

 that under no possible circumstances might 

 such a change be undesirable, but I want to 

 amend the Constitution of this country, when 

 it is amended, with the utmost care. It is not 

 a thing to be lightly dealt with. It is not a by- 

 law, or an ordinance, or an ordinary act of 

 legislation that is to be changed every day with 

 every tide of public sentiment or according to 

 the notion of any party that happens to be 

 dominant hi the halls of Congress. Changes 

 in it should be made with the utmost care by 

 every one engaged in making those changes, 

 from their inauguration in either House of 

 Congress to the final votes of the people or of 

 the Legislatures by which amendments are to 

 be ratified or rejected. Therefore, it does seem 

 to me that a proposition so sweeping as this 

 deserves, and must receive before it can be 

 acted upon, the most ample consideration of 

 the Senate." 



Mr. Conkling, of New York, said : " I will 



not at this time ask the Senate to listen to an 

 opinion from me as to power conferred by the 

 Constitution to adopt this twenty-second joint 

 rule, but, if I read Article XII. with so much 

 latitude as to convince me that the twenty-sec- 

 ond joint rule is within its permission, I think 

 I should be willing to rely even upon my own 

 ingenuity then to devise ways and modes, under 

 a reading of the Constitution as broad as that, 

 which would go very far to avoid and guard 

 against the danger that surrounds the count. 

 Certainly I think few lawyers will study the 

 twenty-second joint rule and deny that some 

 of its provisions are at least questionable in 

 respect of the power given by the Constitution 

 thus to direct and govern the counting of the 

 votes. 



" Returning for a moment to those words in 

 the Constitution, we find that the President of 

 the Senate is to do but one thing, which is to 

 open, and of course manually to present, and 

 be the custodian of, the returns upon which 

 the election is to depend, which are called in 

 this provision of the Constitution k the certifi- 

 cates.' Then we find the language changes, 

 and it ordains in most mandatory phrase that 

 'the votes shall then be counted.' There, I 

 submit, is appropriate domain for legislative 

 discretion, either by legislation or by a joint 

 rule, if concurrent action between the two 

 Houses rather than legislative action be pre- 

 ferred. I find added : 



The person having the greatest number of votes 

 for President shall be the President. 



" Those are not superficial words. They do 

 not relate to the modus; they are not confined 

 to the count; but they go to the ultimate re- 

 sult, and declare that the person having the 

 greatest number of votes shall be the President. 

 Stopping where I am, as I do not mean to de- 

 tain the Senate, I cannot doubt, until some 

 Senator shall adduce reasons which have never 

 been given in my hearing, that there lies with- 

 in the limits of that provision an opportunity 

 not only to dispense with the twenty-second 

 joint rule, but to put in its place a rule or a 

 statute under which those words can certainly 

 be enforced, under which the votes can be 

 counted and counted in the presence of the 

 two Houses, and under which the person for 

 whom a majority of them has in truth been 

 cast shall be the President. Of the details I 

 say nothing; of the merits of the proposed 

 constitutional amendment I say nothing; but 

 I do say, and had I the power to do it and 

 believed it to be necessary, I would bring it 

 home to every Senator and impress it upon 

 him, that we shall fall short in an urgent and 

 imminent duty if the 4th of March witnesses 

 a dissolution of these two Houses without 

 their having devised some mode better than 

 the twenty-second joint rule of ascertaining 

 and recording and establishing the will of the 

 people expressed by elections in the States as 

 to the choice of a Chief Magistrate." 



Mr. Edmunds, of Vermont, said : " There is 



