CONGRESS, UNITED STATES. 



143 



been made to these double returns, or either 

 of them, in writing, in a formal way, stating 

 the ground of them and without argument, 

 this commission ' shall proceed to consider the 

 same, with the same powers, if any, now pos- 

 sessed for that purpose by the two Houses 

 acting separately or together, and, by a ma- 

 jority of votes, decide whether any and what 

 votes from such State are the votes provided 

 for by the Constitution of the United States.' 



" That is what they are to decide upon these 

 papers, to ascertain which of the conflicting 

 claimants, as you may say, to the right to have 

 exercised a voice in this election is the consti- 

 tutional organ of the State. Is not that ex- 

 actly what the Constitution requires should 

 be ascertained by somebody, and in some way ? 

 Of course every one will agree that it is, that 

 it is the sole question in a case of dispute, and 

 that no other is conceivable. Whatever con- 

 stitutional voice a State in this Union has sent 

 to you the Constitution declares shall have its 

 weight, without the right of anybody to im- 

 pugn or to disregard it. So, as I say, the sole 

 question under the Constitution is, what is the 

 constitutional vote of the State ? and so, what 

 is the paper, if any, of the two presented that 

 speaks the constitutional voice of that State 

 according to the methods prescribed by the 

 Constitution itself? 



"Then it proceeds to say 'and how many 

 and what persons were duly appointed electors 

 in sueh State.' This was necessary because in 

 a certain event, of no person having a majority 

 of all the electors appointed, the House of 

 Representatives is called upon by the Consti- 

 tution to exercise the function of electing the 

 President of the United States. And so it was 

 thought necessary that this tribunal having 

 these papers before i8 should make a distinct 

 report upon the number of electors that had 

 been lawfully appointed. Of course the words 

 'what persons' would have meant exactly the 

 same without the other words, because, if they 

 decided for one of the two double returns 

 rather than the other, the paper itself would 

 show which were the persons who were 

 named in it. But, as a mere matter of conven- 

 ience of phraseology, the language is in. 



"Then it provides, what has been greatly 

 criticised upon both sides of the partisan view 

 of the subject if I may use that phrase with- 

 out offense to anybody, and I think I may, for 

 I am a partisan myself then it provides what 

 has been the subject of criticism, and equally 

 intense, as far as I have observed, from both 

 points of view. Those who wisli one of the 

 candidates elected condemn it because it grants 

 too much ; those who wish another of the 

 candidates elected condemn it in equally fierce 

 terms because it grants too little ; it holds 

 aloft the scale of justice in absolute equipoise, 

 and gives nothing to either. What does it say ? 



And may therein 



" That is, in the decision which is committed 



to them as to what is the constitutional vote 

 of a State 



take into view such petitions, depositions, and other 

 papers, if any. as shall, by the Constitution and now 

 existing law, be competent and pertinent in such 

 consideration. 



" There is one party in this country, five 

 millions of these voters to whom I have re- 

 ferred, who desire (I do not say think it can bo 

 done, but who desire) that this commission, if 

 created, shall descend below the action of the 

 State authorities and ascertain how many 

 votes were given for this man and that man 

 and the other, with a view, of course, to the 

 success, as they suppose, of their own candi- 

 date, if that were done. The other five mill- 

 ions, treating them as a mass, in the same 

 way desire that the law shall be so that they 

 cannot descend behind the action of the au- 

 thorities of a State, be that action right or 

 wrong, lawful or unlawful. In that state of 

 opposition of claim, what is the simple and 

 obvious principle, not merely of justice and 

 fair play, but of constitutional law, that would 

 apply to such a case ? 



" The election of the President of the United 

 States for the next four years took place on 

 the first Wednesday in December ; that is, 

 npon the supposition that some one had a ma- 

 jority of all the electors appointed, taking that 

 for granted ; and the simplest provisions of 

 the law, as it appeared to me and to us all to 

 be, should be those that provided that that 

 dispute touching that election which took place 

 on the first Wednesday in December should be 

 decided by the law as it was on the first 

 Wednesday in December ; and if by the law as 

 it was on the first Wednesday in December (and 

 of course it is the same now), as we say, ' now 

 existing law,' the candidate of one party, his 

 rights measured by that law, is entitled to the 

 office, he ought to have it. This would be a 

 strange republic of law indeed, if after, accord- 

 ing to one law, the candidate of one party had 

 been elected, the Congress of the United States 

 or anybody else should make a new law by 

 force of which the candidate of some other 

 party got elected. Of course it would be an 

 outrage upon the principles of government. 

 So that we felt perfectly free, not only free but 

 more than free, we felt it to be our bounden 

 duty, that no right should be affected in 

 respect of the candidates of either of these 

 great parties by the law that we pass, and that 

 the right of A or B to this great office must be 

 determined by the law as it stands on the date 

 of the passage of this act. All that we de- 

 signed this act to do, and all that it does do, is 

 to provide merely the method, by regular steps 

 of lawful procedure, of ascertaining what the 

 law and the fact was on that first Wednesday 

 in December, 1876. 



" It has been said by some that this commis- 

 sion, if this law passes, having the powers of the 

 two Houses conferred upon them, may go behind 

 the returns, as the common phrase is. Well, if 



