CONGRESS, UNITED STATES. 



211 



oised in conformity with certain rules in order 

 to tfi w effect to what the Constitution declares 

 to be the root and substance of the whole mat- 

 ter the independent and untrammeled voice 

 of tlio State, selecting for itself and by its own 

 instrumentalities the persons whom it has cho- 

 sen ; and there is still left in that view of the 

 case, as with the courts in the other cases I 

 have referred to, the revising power of deter- 

 mining in the case that I have named, first, 

 whether the Legislature of the given State has 

 provided by law for a determination of the 

 dispute; second, whether that dispute has been 

 determined in conformity with the regulations 

 and by the steps that that law prescribes; that 

 is \vhother the jurisdiction thus invoked has 

 been followed. Then there only follows the 

 consequence as in the other cases I have named, 

 to illustrate and I might spend a day in in- 

 stances, enough certainly to convince the mind 

 of any man, I think there only follows the 

 consequence that this court (if you call it such) 

 of the two Houses, when it finds that the Le- 

 gislature of the State has made this provision, 

 when it finds that the provision has been fol- 

 lowed, is bound upon the principles and dec- 

 larations of this act, as it would be without it 

 indeed, on the principles of law, to respect and 

 to follow the determination of the State. I say 

 then that we have not taken away the juris- 

 diction of the two Houses if it exists ; we have 

 not cramped it ; we have only provided that 

 in the exercise of that jurisdiction the test of 

 what is the voice of the State shall be found 

 in the declaration of the State itsalf. That 

 is all. 



"I now come, sir, because I wish to be very 

 brief and will take an opportunity hereafter, if 

 it be necessary, to refer to authorities and de- 

 cisions and precedents for what I have under- 

 taken to uphold I come to what this function 

 is of counting the votes ; and on that I do not 

 wish to provoke a discussion, because it is ap- 

 parently immaterial, with any gentleman who 

 may differ with me. I know, as I believe I 

 have said, that some have been, and no doubt 

 now are, of the opinion that the function of 

 counting, and as involved in that of deter- 

 mining the identity and validity of a vote to a 

 certain degree, is with the presiding officer of 

 the Senate, whether he happens to be the Vice- 

 President of the United States or the President 

 pro tempore of the body. That has been so 

 thoroughly discussed hitherto, and so emphat- 

 ically decided in an instance where it was 

 largely according to the political wishes of a 

 majority of this body at any rate and that is 

 the only body I am speaking to to hold to the 

 authority of the President of the Senate, that 

 I do not think it necessary (certainly it is not 

 on this occasion) to go into any discussion. 

 The Senate held by a very large majority that 

 no such power existed. 



" The next question would be whether this 

 power resides in the two Houses, because the 

 scope of this act in the other part of it is either 



to recognize the existence in the two House*, 

 as two judges of election, BO to speak, of the 

 power to count and decide the necessary ques- 

 tions that are involved in that, and so regulates 

 the exercise of that jurisdiction, or else it is a 

 jurisdiction and an authority that the Consti- 

 tution has not specifically lodged in any de- 

 partment of the Government, but has only de- 

 clared that it shall be exercised ; and if that be 

 the true construction of the Constitution, of 

 course it follows that it is open to legislative 

 provision, and that Congress may confer upon 

 the two Houses the administrative faculty, with 

 all that it involves, of proceeding with this 

 ceremony of the counting of the votes of the 

 States, and with the decision of all the ques- 

 tions that necessarily arise in every act, 

 whether you call it an executive act, an ad- 

 ministrative act, or a judicial act ; because it is 

 impossible, as everybody knows, to carry on a 

 government for a day, even in the simplest and 

 tlie humblest of its executive functions, with- 

 out recognizing by law in the simplest and 

 humblest executive officer a certain amount 

 of deciding power and a certain amount of re- 

 sponsibility. The judge of a court issues his 

 warrant in conformity to law for the arrest of 

 A B, and it is placed in the hands of the 

 marshal. You say at first sight there is no- 

 thing for the marshal to decide, he is to arrest 

 A B ; but that very fact implies that the mar- 

 shal must decide in executing that warrant be- 

 tween A B and the eight hundred million, or 

 whatever it may be, in the world if his juris- 

 diction extended so far, or between A B and 

 the forty million if his jurisdiction extended 

 over the United States, or the five million as it 

 is in the State of New York, whether A B is 

 one of that five million or whether some other 

 man is the one that he is after. In other 

 words, the marshal must decide for the time 

 being the identity of the man whom he takes 

 into his custody. He decides undoubtedly at his 

 peril. So the President of the United States 

 is authorized by the Constitution to do a great 

 variety of executive acts in certain contingen- 

 cies, and through his subordinate officers acting 

 under his authority he proceeds to do those 

 acts. In doing them the discretion of the ex- 

 ecutive power in the application of the law to 

 the subject upon which it speaks must be exer- 

 cised judgment, discretion, will, choice. He 

 exercises it at his peril ; so do his subordinates 

 where it is administrative. Where it is purely 

 executive, if he makes a mistake the remedy 

 of the citizen is clear and his redress perfect. 

 If it is a matter where the Constitution or the 

 law confides it to him as a judicial discretion, 

 and he exercises it in an ill way rather than a 

 good one, of course it is a perfectly legal act, 

 and it must stand ; he is the sole judge, and 

 your only course then is, if he does it corruptly, 

 to impeach him. 



" Mr. President, I say this only to call yonr 

 attention and that of the honorable Senators to 

 the circumstance that whether yon say this 



