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CONGRESS, UNITED STATES. 



the two Houses now possess the constitutional 

 power to do that thing, they also possessed it 

 on the first Wednesday in December, and we 

 have only changed the method in the first in- 

 stance of taking that step. If the two Houses, 

 by the Constitution of the United States, on 

 the first Wednesday in December and now, 

 have no constitutional right to overhaul the 

 action of a sovereign State in its selection 

 under the Constitution of its electors, then this 

 commission has no right to do it. 



" Now, what are we to do ? Some say that 

 the two Houses or any tribunal that is to pass 

 upon a dispute have the right to go to the 

 bottom, to disregard the action of State au- 

 thorities, to say that they have exceeded their 

 jurisdiction, or, acting within it, that they 

 have not rightly and purely exercised it. 

 Others say exactly the reverse, and that it 

 would be a far greater injury to the republic 

 that Congress should assume the power of 

 overhauling the action of States than it would 

 be that once or twice, or a dozen times, by the 

 unjust action of the authorities of some State, 

 one President rather than another should be 

 elected. So each side would desire that this 

 law should be framed to meet its particular 

 views, the one side to have it say in explicit 

 terms, ' You shall have authority that this act 

 gives to you, because the act gives it to you, 

 to go down and inquire.' The other would 

 be glad to have it say in explicit terms, ' You 

 shall not go down and inquire, whether the 

 law before you authorized any one to go down 

 and inquire or not.' What could we do? 

 We could do that just, that simple thing, we 

 thought, that we have done, and that is to say 

 that this presidential election must be settled, 

 and settled only upon the Constitution and the 

 principles of law as they existed when it took 

 place. 



" Who is to decide what they were when it 

 took place? Exactly the tribunal that must 

 decide everything in the end whatever tri- 

 bunal the Constitution and the law constitutes 

 for the purpose of such a decision. This law 

 constitutes a tribunal to decide that very thing, 

 among others. In other words, it is com- 

 manded to decide what is the constitutional 

 vote of a State ; and, in doing that, it may take 

 into view any evidence of any kind that the 

 Constitution and the law, as it is now, makes 

 appropriate to that subject, and not any other. 

 Can anything be more just than that ? Would 

 it not be a departure from every principle of 

 justice, and of constitutional procedure, to do 

 anything else ? There we leave it. It must 

 be left somewhere ; and it can be left nowhere, 

 under ordinary principles of government, ex- 

 cept in the court (if I may call it a court for 

 the purposes of this illustration) that is bound 

 to decide upon the cause. If you are to leave 

 it to the two Houses, as the bill that passed 

 this body less than a year ago did, without 

 any limitation whatever, with as wide a juris- 

 diction as it was possible to exist, what have 



you then ? You have large bodies of men, 

 and we all know that, just in proportion aa 

 you have large bodies of men, you have a de- 

 parture, when they are acting together, from 

 that personal sense of individual responsibility 

 to decide according to your intellect and judg-. 

 ment rather than to act with the swift current 

 of warm debate and warm feeling ; and you 

 commit the right of these persons in this great 

 contest and controversy, therefore, to a tri- 

 bunal that is much less likely to be governed 

 by the principles of constitutional law than it 

 is by the feeling and intensity of party wishes 

 and party bias." 



Mr. Morton, of Indiana, said : " Mr. Presi- 

 dent, as the member of the committee who did 

 not agree to this bill, I have thought it proper 

 that I should make a brief statement of the 

 grounds on which I did not concur with my 

 colleagues. 



"I regard this bill, Mr. President, as a com- 

 promise. It will take its place alongside of the 

 compromise of 1820, and the compromise of 

 1850. By the compromise of 1820, all the ter- 

 ritory south of 36 30' was given over to sla- 

 very ; and, when the time came to settle the 

 territory north of that line, the compromise 

 was destroyed. By the compromise of 1850 

 the institution of slavery got the immediate 

 benefit of the fugitive-slave law, which gave it 

 such prestige, power, and confidence as made it 

 aspire to the complete conquest of the country. 



" I believe that Rutherford B. Hayes has been 

 elected President of the United States ; he has 

 been elected under the forms of law and ac- 

 cording to law, and that he is elected in the 

 hearts of the people ; and I believe that if he 

 should be counted in, as eighteen Presidents 

 were successively counted in from the begin- 

 ning of this Government, he would be inaugu- 

 rated and there would be no violence and no 

 revolution. 



" I brought forward a bill some two years 

 ago, which was afterward reported by the Com- ' 

 mittee on Privileges and Elections, for the pur- 

 pose of having a law for the counting of the 

 electoral vote. I did not claim that that bill 

 was perfect. It was not in view of any con- 

 tingency or case. It, however, was in one re- 

 spect a safe bill, and that is, leaving out of 

 view who should count the vote, whether the 

 President of the Senate or the two Houses, it 

 contained no word by which the two Houses 

 could be authorized to go behind the returns 

 of a State, to go behind the decision made by 

 the returning officers of the State appointed 

 by the State for that purpose ; and the bill of 

 1800, if I remember correctly, expressly pro- 

 vided that the two Houses should not go be- 

 hind the returns so far as to count the votes 

 for electors. I am not an advocate for State 

 sovereignty ; I never have been ; but I have 

 been a consistent advocate of State rights as I 

 am now. The Constitution of the United States 

 confers upon the States the power to appoint 

 electors in such way as the Legislatures of the 



