202 



CONGRESS, UNITED STATES. 



judicata ; the State has been counted in all 

 the votes to which she is entitled. 



"It does seem to me, then, that to strike out 

 this second section of the bill is to clothe the 

 Presiding Officer with a power that not one of 

 us I trust will be willing to confer upon him 

 to confer upon him the power, where there is 

 a division of opinion between the two Houses, 

 to count the votes on that side which he shall 

 see fit first to present. That is the inevitable 

 result. 



" Again, what must you do where there is 

 more than one return from a State, if you leave 

 the present rule to exist ? Why, just precisely 

 what took place at the last count. The vote 

 of three States was thrown out, Louisiana, 

 Arkansas, Texas, and the vote of certain elec- 

 tors from the State of Georgia. Suppose we 

 go on under the present rule and the vote 

 is counted in January, 1877, and two sets 

 of returns come from a State. The House of 

 Representatives vote for one, the Senate for 

 the other. Both go out, under the existing 

 rule, and the State loses her vote. Is that 

 right? Is that a performance of our constitu- 

 tional duty ? We are to determine which of 

 the men who cast those votes were the elec- 

 tors in that State of President and Vice-Presi- 

 dent. That is the duty that devolves upon us. 

 If there are two returns from two different 

 bodies of men, it is our duty to determine be- 

 tween them which is the true body of men. 

 Can we shirk that duty ? Have we any right 

 to shirk that duty ? Are we not bound to de- 

 cide it if we can decide it? Under your pres- 

 ent rule you do not decide it at all. One 

 House decides that one body of men were not 

 the true electors and their certificate is re- 

 jected. The other House decides that the 

 other body were not the true electors, and 

 their certificate is rejected. Thus you come to 

 no decision. You make no effort at a decision 

 between these two conflicting claims. 



" That is not right. It may be inevitable 

 under any system. The same thing might 

 happen, I grant, under this very second section, 

 but it provides that you shall consider the 

 votes and determine between them. What, 

 then, is this second section ? I feel bound to 

 say this much about it because I suggested this 

 point in the first debate that took place at this 

 session on the resolution offered by the Senator 

 from Indiana (Mr. Morton) to rescind the 

 twenty-second joint rule. I suggested the 

 very difficulty and the remedy, and I supposed 

 that it was in some small respect owing to 

 what I then said that the Senator has incor- 

 porated it in his bill. I thought I was right 

 then and I think so yet. Therefore I have 

 felt bound to make these remarks." 



Mr. Edmunds, of Vermont, said : " The dif- 

 ficulty that meets us under the Constitution, 

 as it strikes me, is this : The Constitution re- 

 quires that the vote of each State shall be 

 opened by the Presiding Ofiicer, the President 

 of the Senate. When opened the votes are to 



be counted. The question on which the whole 

 thing turns, to which our legislation is direct- 

 ed, except mere machinery, is what is a vote 

 of a State? We all agree that every vote of 

 every State ought to be counted. We all agree 

 that whatever pretends to be a vote, or looks 

 like a vote but is not a vote, should not be count- 

 ed. So the thing which we are to provide for 

 by this legislation is a means of ascertaining 

 fairly and truly, according to the Constitution 

 and the law, what is the vote, the will, of each 

 particular State in the choice of a President. 

 I think no man can. question that I state the 

 question fairly. That is it. Now, how are 

 we to do it ? In almost all cases in ascertain- 

 ing not only in elections but in a thousand 

 other affairs what has been done (because 

 what has been done is the business which the 

 Constitution requires in some way to be ascer- 

 tained), a tribunal is provided, upon the phi- 

 losophy of justice and jurisprudence, which ,is 

 one single tribunal, and whose judgment when 

 pronounced by a quorum of its body becomes 

 one single judgment. The fault of the present 

 rule is that, unless both Houses concur in 

 counting a particular paper as a vote, the paper 

 is not counted at all. If a State should send a 

 vote which should be perfect in every respect, 

 conform on its face to the Constitution and to 

 the law, be certified in the way that the law 

 requires, sealed by the seal of the State, coun- 

 tersigned by the Governor and the Secretary 

 of State, and all that, it is within the power 

 of either House, as the rule now stands, it is 

 true, to say it shall not be counted at all, and 

 the constitutional right of the State in ques- 

 tion is entirely overthrown in the vote for 

 President. But that of course implies that 

 one or the other of the two Houses, in such a 

 case, has failed to perform the duty which the 

 Constitution and the law and the rule impose 

 upon it. We cannot presume that either 

 House would object to the counting of a par- 

 ticular paper as a vote unless it should have a 

 lawful reason for doing so, unless it appeared 

 in some way that it did not represent the law- 

 ful and constitutional vote of the State, or un- 

 less it appeared for want of evidence, in defect 

 of execution or certification, or whatever, that 

 we are unable to say what was the vote of the 

 State. 



" Now, when you reverse it and take it as 

 this bill is, which provides leaving out the 

 case of double returns that every thing that 

 comes from a State called a vote, no matter if 

 it be from a revolutionary government, no 

 matter if it be from an assemblage of men 

 who have no shadow of constitutional author- 

 ity, but who have got possession of the great 

 seal, or have made another, as in the Louisiana 

 case one of the witnesses swore that the great 

 seals of the State of Louisiana were as plenty 

 as blackberries and made to order, shall be 

 counted. Here you have a paper which on 

 the face of it appears to be proved by the 

 great seal of the State of Louisiana ; I take 



