CONGRESS, UNITED STATES. 



139 



SEO. 6. That nothing in this act shall be held to 

 impair or affect any right now existing under the 

 Constitution and Jaws to question, by proceeding in 

 the judicial courts of the United States, the right or 

 title of the person who shall be declared elected or 

 who shall claim to be President or Vice-President 

 of the United States if any such right exists. 



SEC. V. The said commission shall make its own 

 rules, keep a record of its proceedings, and shall 

 have power to employ such persons as may be neces- 

 sary for the transaction of its business and the exe- 

 cution of its powers. 



The Chief Clerk read the report, as follows: 

 The committees of the Senate and House of Kep- 



resentatives uppointed under the following several 



resolutions : 



HOUSE RESOLUTION. 



Whereas, There are differences of opinion as to the 

 proper mode of counting the electoral votes for 

 President and Vice-President, and as to the manner 

 of determining questions that may arise as to the 

 legality and validity of returns made of such votes 

 by the several States ; 



And whereas, It is of the utmost importance that 

 all differences of opinion and all doubt and uncer- 

 tainty upon these questions should be removed, to 

 the end therefore that the votes may be counted and 

 the result declared by a tribunal whose authority 

 none can question and whose decision all will ac- 

 cept as final : therefore 



Jtesolved, That a committee of seven members of 

 this House be appointed by the Speaker, to act in 

 conjunction with any similar committee that may be 

 appointed by the Senate, to prepare and report with- 

 out delay such a measure, either legislative or con- 

 stitutional, as may, in their judgment, be best calcu- 

 lated to accomplish the desired end, and that said 

 committee have leave to report at any time. 



SENATE RESOLUTION. 



Resolved, That the message of the House of Repre- 

 sentatives on the subject of the presidential election 

 be referred to a select committee of seven Senators, 

 with power to prepare and report, without unneces 

 sary delay, such a measure, either of a legislative or 

 other character, as may, in their judgment, be best 

 calculated to accomplish the lawful counting of the 

 electoral votes, and best disposition of all questions 

 connected therewith, and the due declaration of the 

 result ; and that said committee have power to con- 

 fer and act with the committee of the House of Rep- 

 resentatives named in said message, and to report 

 by bill or otherwise 



beg leave to report to tlieir respective Houses that 

 thejr have considered the subject named in said res- 

 olutions, and have had full and free conference with 

 each other thereon, and now report the accompany- 

 ing bill and recommend its passage. The substance 

 of the bill embraces : 



1. Provisions for the meeting of the two Houses, 

 as required by the Constitution, and the general 

 course of proceeding, and the declaration of the re- 

 sult. 



2. Provision* fortho disposition of questions aris- 

 ing in respect to States from which only one set of 

 certificates has been received ; that each Houae 

 shall consider the question, and shall only decide 

 against a vote by concurrent., affirmative action. 



3. Provisions for so-called double returns from a 

 State ; that such conflicting returns and papers shall 

 be submitted to the consideration of a commission, 

 composed of equal numbers of members of the Sen- 

 ate and of the House of Representatives and of the 

 Supreme Court of the United States ; that this com- 

 mission shall be organized and sworn and have 

 power to consider and decide, according to the Con- 

 stitution and law, what is the constitutional vote of 

 the State in question : and that such decision shall 

 govern the disposition of the subject, unless both 

 Houses shall determine otherwise. 



4. It is provided that the act shall not affect either 

 way the question of the right of resort to tlie judi- 

 cial courts of the United States by the persons con- 

 cerned as claimants to the offices in question. 



We have applied the utmost practicable study and 

 deliberation to the subject, and believe that the bill 

 now reported is the best attainable disposition of 

 the difficult problems and disputed theories arising 

 out of the late election. It must be obvious to every 

 person conversant with the history of the country 

 and with the formation and interpretation of the Con- 

 stitution that a wide diversity of views and opinions 

 touching the subject, not wholly coincident with the 

 bias or wishes of the members of political parties, 

 would naturally exist. We have in this state of 

 things chosen, therefore, not to deal with abstract 

 questions, save so far as they are necessarily in- 

 volved in the legislation proposed. It is, of course, 

 plain that the report of the bill implies that in our 

 opinion legislation may be had on the subject in ac- 

 cordance with the Constitution, but we think that 

 the law proposed is inconsistent with lew of the 

 principal theories upon the subject. The Constitu- 

 tion requires that the electoral votes shall be count- 

 ed on a particular occasion. All will agree that the 

 votes named in the Constitution are the constitu- 

 tional votes of the States, and not other ; and when 

 they have been found and identified, there is noth- 

 ing left to be disputed or decided ; all the rest is the 

 mere clerical work of summing up the numbers, 

 which being done, the Constitution itself declares 

 the consequence. 



This bill, then, is only directed to ascertaining, 

 for the purpose and in aid of the counting, what are 

 the constitutional votes of the respective States ; 

 and, whatever jurisdiction exists for such purpose, 

 the bill only regulates the method of exercising it. 

 The Constitution, our great instrument and security 

 for liberty and order, speaks in the amplestlanguage 

 for all such cases, in whatever aspect they may be 

 presented. It declares that the Congress shall kave 

 power " to make all laws which shall be necessary 

 and proper for carrying into execution the foregoing 

 powers and all other powers vested by this Consti- 

 tution in the Government of the United States, or in 

 any department or officer thereof." The committee, 

 therefore, think that the law proposed cannot be 

 justly assailed ns unconstitutional by any one, and 

 for this reason we think it unnecessary, whatever 

 may be our individual views, to discuss any of the 

 theories referred to. Our fidelity to the Constitu- 

 tion is observed when we find that the law we recom- 

 mend is consistent with that instrument. 



The matter then being a proper subject for legis- 

 lation, the fitness of the means proposed becomes 

 the next subject for consideration. Upon this we 

 beg leave to submit a few brief observation^. 



In all just governments both public nnd private 

 rights must be defined and determined by the law. 

 This is essential to the very idea of such* a govern- 

 ment, and is the characteristic distinction betwien 

 free and despotic systems. However important it 

 may be, whether one citizen or another shall be the 

 Chief Magistrate for a prescribed period, upon just 

 theories of civil institutions, it is of fur greater mo- 

 ment that the will of the people, lawfully expressed 

 in the choice of that officer, snail be ascertained and 

 carried into effect in a lawful way. It is true that in 

 every operation of a government of laws, frrm the 

 most trivial to the most important, there will always 

 be the possibility that the result reached will not be 

 the true one. The executive officer may not wifely 

 perform his duty, the courts may not truly declare 

 the law, and the legislative body may not enact the 

 best laws ; hut, in either case, to resist the act of the 

 Executive, the courts, or the Legislature, acting con- 

 stitutionally and lawfully within their sphere, would 

 be to set up anarchy in the place of government. 

 We think, then, that to provide a clear and lawful 

 means of performing a great and necessary function 

 of government, in a time of much public dispute, is 



