212 



CONGRESS, UNITED STATES. 



power is with the two Houses under the Con- 

 stitution, or whether you say this bill provid- 

 ing for the exertion of it confers it as well, is 

 of no consequence. If it is there, it is the sub- 

 ject of regulation ; if it is not there, then it is 

 within the competency of Congress, as every- 

 body will agree, to provide for its being exer- 

 cised by somebody ; and in either case it is, as 

 is the judicial power, to be exercised in con- 

 formity to the Constitution and in conform- 

 ity to the regulations exerted in the spirit of 

 the Constitution to carry the Constitution into 

 effect. 



"The Constitution, then, saying that the 

 State shall appoint its electors, and saying that 

 that appointment, which means the creation of 

 some body whose vote is to be counted and 

 nothing else, shall be in the manner that the 

 Legislature shall direct, it is within the com- 

 petence of Congress, as it appears to us, 

 whether the power of counting be judicial, or 

 wherever it may be lodged, or wherever it may 

 be reposed, either by the Constitution or by 

 the law, to declare that the counting tribunal, 

 whatever it may be, shall obey the Constitu- 

 tion in respecting the act of the State done in 

 conformity with it. It does not take away a 

 deciding power, if one exists ; it only regulates 

 the means and the evidence which the court, if 

 you call it a court, shall give effect to. 



" Of course, Mr. President, any person who 

 believes that the two Houses of Congress do 

 not under the Constitution possess any power 

 at all to participate, except as witnesses, in the 

 count of these votes, but that that power re- 

 sides in the President of the Senate alone, 

 would be obliged necessarily to vote against 

 this bill, irrespective of the effect that we give 

 to the voice of the State, because it does pro- 

 vide for the action of the two Houses. He 

 would not be obliged to vote against the fourth 

 section of the bill, if it stood alone, framed to 

 guide the exercise of the jurisdiction of the 

 President of the Senate ; because if it were 

 with him, Congress could with equal propriety 

 and with equal validity under the Constitution 

 declare what should be the true authentication 

 of the voice of the State which he should be 

 bound to respect, that authentication being in 

 the direction that the Constitution provides 

 of expressing its voice in the manner that its 

 Legislature directed. But apart from that, of 

 course those who believe that the President of 

 the Senate has this power of counting, be it 

 much or little, as this bill is framed in all its 

 aspects, could not vote for it ; but to any gen- 

 tleman who believes that the power resides in 

 the two Houses, I respectfully submit that this 

 bill does not in its fourth section nobody 

 claims that it does in any of the others trench 

 in the least upon the exercise of that power, 

 but it provides regulations in the same manner 

 and of the same nature that the recognized 

 course of the history of this Government shows 

 have always been provided for its judiciary, 

 and which the very letter of the Constitution 



as to the appointment of electors and the man- 

 ner of their appointment declares shall have 

 effect, even if you had not any law, that the 

 authentic voice of the State itself declaring 

 who are her electors shall be recognized and 

 respected." 



Mr. Morgan of Alabama: "This bill, as I 

 understand its provisions, is framed upon the 

 proposition that the power to adjudge and to 

 decide upon the validity of the appointment of 

 electors resides in the States, and may be 

 completely and finally exercised through tri- 

 bunals created by State laws, and regulated 

 in their procedure by State laws. It does not, 

 however, adopt the idea that, if the States 

 decline to adjudge and decide conclusively 

 who are appointed electors, there is no other 

 constitutional authority that can make such a 

 decision. On the contrary, it provides rules 

 to govern in such case the action of the two 

 Houses of Congress as the tribunal which 

 may decide, if the State has failed to decide, 

 the validity of the appointment of the electors. 

 Without stopping at this point to consider 

 more particularly the provisions of this part 

 of the bill with reference to their fitness to 

 accomplish this purpose, I proceed to say that 

 the bill does not by express provision attempt 

 to dispose of the question of the eligibility of 

 the electors that may be appointed by the 

 States. I think that this is the true constitu- 

 tional course to be observed in this matter. 

 The Constitution expressly declares certain 

 grounds of ineligibility of electors, which oper- 

 ate ex propio vigore so as to annul any appoint- 

 ment of such persons. Other grounds of dis- 

 disqualification of electors may exist, such as 

 age or sex, a want of citizenship, insanity, or 

 corruption through bribery, which the bill 

 does not attempt to provide for. It is a pre- 

 sumption that we must indulge that the States 

 will make provision for such cases in their laws 

 respecting the qualifications of electors ; but, 

 if they shall fail to do so, the Houses of Con- 

 gress are at liberty to act upon such objections. 

 The bill includes the power of the Houses to 

 take such action, by requiring their concur- 

 rence in a separate and affirmative vote in 

 counting or refusing to count all votes that 

 have been transmitted to them by the colleges 

 of electors, excepting only the instance in 

 which the States whose returns are questioned 

 have through their own tribunals determined 

 who are lawfully appointed electors of such 

 States upon a controversy instituted for that 

 purpose. 



" The leading provisions of this measure 

 may be thus stated with reference to the prin- 

 ciples on which they are founded : 



" First. The bill secures firmly and broadly 

 that ' each State shall appoint, in such manner 

 as the Legislature thereof may direct, a num- 

 ber of electors equal to the whole number 

 of Senators and Representatives to which the 

 State may be entitled in the Congress.' 



"Second. It secures to the State the right 



