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CONGEESS, UNITED STATES. 



ner in which it shall be exerted. Then this 

 law comes in under the Constitution to declare 

 that when we have this authentic declaration 

 of this exertion by the State of the power that 

 the Constitution has reposed in it and the duty 

 of exercising that power that it has imposed 

 upon it, the national authority will respect the 

 exercise of that power, just as it is bound to 

 respect the exercise of every other power the 

 State may possess. 



" So it appeared to the committee that this 

 provision that that body of men shall be taken 

 to be the electors whom the State has appoint- 

 ed in the manner that the Legislature shall 

 have determined that their appointment shall 

 be ascertained, is an inherent part of the right 

 which the State acquires under the Constitu- 

 tion to select its electors for itself and an in- 

 herent part of the duty that the Constitution 

 has imposed upon the counting power, let it 

 rest wherever it may, of recognizing and re- 

 specting this determination of the State as to 

 the choice and identity of its electors. When 

 you take the next step and have ascertained 

 the body of persons who are to give their 

 votes, then this clause of the Constitution has 

 exhausted itself, the State has no further legal 

 and legitimate concern in the way of control 

 over the action of the electors. The duty and 

 the power that is confided to the State is the 

 duty of choosing a body of men and of choosing 

 them finally, so that that choice shall have its 

 effect in the final aggregate of the votes which 

 are to be counted. That duty being done, then 

 the electors so chosen and determined are of- 

 ficers, under the Constitution, of the United 

 States, whose duties are pointed out by the 

 Constitution,, and of course it follows that 

 they in the course of their conduct are subject 

 to the Constitution and the constitutional laws 

 of the United States, and to nothing else. 



" This bill, then, in this respect of which I 

 am speaking, simply provides you may mea- 

 sure and discuss it in what way you will that 

 the solemn and determinate voice of the State 

 in the selection of the persons whom the Con- 

 stitution says it shall select and whose votes 

 shall be counted, shall be left where the Con- 

 stitution leaves it, with the State, and that the 

 counting authority shall respect this act of the 

 State and not undertake upon any notions of 

 its own to overturn it. 



" There is something still left ; and I say 

 this to those Senators who have sometimes 

 appeared to suppose that if the two Houses 

 of Congress, as this scheme is, have the count- 

 ing power, the two Houses exercise revisory 

 and judicial powers over whatever questions 

 may legitimately arise. Suppose they do, what 

 then is the true interpretation and the true 

 effect of this bill ? It only acts upon that re- 

 vising and quasi-judicial power, if you call it 

 such and I assume it for the purpose of this 

 aspect of the argument in exactly the same 

 way that from the foundation of the Govern- 

 ment, it has in all sorts of aspects acted upon 



the judicial power that the Constitution cre- 

 ates. That is to say, it regulates the mode of 

 procedure, it defines the rules of evidence, and 

 calls upon the court, if you call it a court, to 

 respect the act and deed of the State which is 

 authenticated in a certain way. That is all. 



" The Constitution says that the Supreme 

 Court of the United States shall have jurisdic- 

 tion of all cases that affect public ambassadors. 

 Now, suppose the Congress of the United States 

 immediately after the formation of the Govern- 

 ment had decided that the only and conclusive 

 evidence as to who is an ambassador over 

 whom that jurisdiction is to be exercised shall 

 be an appointment of a sovereign under the great 

 seal of state of the foreign country from which 

 he purports to come, and that it should not be 

 competent as a consequence for the Supreme 

 Court to take up, either upon public opinion or 

 upon its own private notions, separate affida- 

 vits or what not, to prove the character of the 

 person entitled to appeal to its jurisdiction 

 or upon whom its jurisdiction might rightfully 

 oe exercised. Does anybody question that the 

 court would have bowed in obedience to that 

 law and said, ' It is within the legitimate prov- 

 ince of the legislative power to provide laws 

 by which this court is to be governed in ascer- 

 taining who are and what class are the persons 

 who are entitled to its protection ' ? Nobody 

 would question it. Other instances as to citi- 

 zenship, as to the public character of officers, 

 as to the authentication of records from the 

 Departments fill your statutes with regulations 

 that it shall be the duty of the judicial power 

 to receive as authentic, and give effect to them 

 accordingly, copies certified and formalized in 

 a certain way ; and when in some instances the 

 courts have been appealed to to disregard these 

 regulations of law, and to say that it is a part 

 of the judicial power to make its own regula- 

 tions for the government of itself, and that it 

 is by Congress an invasion of the judicial pow- 

 er and a limitation of it to prescribe rules, the 

 court with unanimous voice and for almost a 

 century, whenever the question has arisen, has 

 said, 'No, we can not take that view of it; 

 we can not make regulations for the adminis- 

 tration of the very powers that the Constitution 

 has conferred upon us,' not conferred by law, 

 ' against an act of Congress; but it falls within 

 the legislative power to give effect to the juris- 

 diction that is imposed upon us and to regulate 

 its administration,' just as in all civilized nations 

 it has always been regulated by the national 

 statutes. So that if it were to be established 

 (which I do not at all agree to, but I do not 

 wish to go into that matter now) that the pow- 

 er of the two Houses recognized in this bill, or 

 conferred by it, as the case may be, of exer- 

 cising a certain canvassing scrutiny over these 

 votes is a plenary and judicial power, there 

 would still be the rightful jurisdiction of the 

 legislative authority of the United States to 

 declare that that jurisdiction and that plenary 

 revising and canvassing power should be exer- 



