CONGRESS, UNITED STATES. 



145 



States may prescribe. This is the absolute 

 right of each State. The mode of appoint- 

 ment is left to the Legislature of the State. 

 The determination as to who have been ap- 

 pointed is left entirely to the State. 



" Should Congress assume to determine who 

 have been appointed so far as to go behind the 

 action of the officers of the State appointed by 

 the laws of the State for that purpose, Con- 

 gress would absorb to itself the entire power, 

 would become a grand returning board, with- 

 out limit and without restraint. The very mo- 

 ment we undertake to go behind the determi- 

 nation of the officers of the State as to the 

 result of a State election and to count and de- 

 termine the result for ourselves, that moment 

 we establish a revolution which ultimately will 

 be the end of presidential elections. I am not 

 now referring to the certificate of the Govern- 

 or, which is prescribed not by State laws but 

 prescribed by the act of Congress ; but I am 

 referring to that determination of the result 

 of elections as prescribed- by the laws of the 

 States. The States have the right to appoint 

 electors ; the Legislature has the right to pre- 

 scribe the method ; and the evidence as to the 

 appointment, as to who has been appointed, is 

 left to the States as absolutely and as completely 

 as the appointment itself. 



" I listened to the very able speech of the 

 Senator from Vermont (Mr. Edmunds) with 

 great interest He made a distinction, I be- 

 lieve, which is correct, that there are two class- 

 es of powers conferred by the Constitution. 

 Where a power is conferred directly upon any 

 department of the Government by the Consti- 

 tution, that power cannot be taken from that 

 department ; that power cannot be delegated ; 

 but where the Constitution simply imposes a 

 duty, but does not vest any particular depart- 

 ment with the performance of that duty, then 

 Congress may by law determine who shall dis- 

 charge that duty. 



" If I understood the Senator aright, he took 

 the ground that the counting of the votes was 

 a duty imposed by the Constitution, but that 

 the Constitution had not located it, had not 

 said who should do it. He denied that the duty 

 was imposed upon the President of the Senate. 

 He said the President of the Senate was di- 

 rected to open all the certificates, but he was 

 not directed to count them. He was directed 

 to open them 'and the votes shall then be 

 counted.' The power and duty to count were 

 not located in the two Houses; the Constitu- 

 tion did not say that any more than it said the 

 President of the Senate should count them. 

 It said the votes should then be counted. As- 

 suming, for the sake of the argument, his po- 

 sition to be true that there is nothing in the 

 Constitution, any part of it, that indicates that 

 the President of the Senate shall count the votes 

 as well as open them ; assuming it to be true 

 that the Constitution simply imposes a duty to 

 count the votes, but does not say by whom the 

 duty shall be performed, and therefore that 

 VOL. xvii 10 A 



Congress is left free to impose the performance 

 of that duty upon a commission and upon any 

 person it sees proper to put in that situation, 

 his position would be tenable. 



" The position of the Senator is that the Con- 

 stitution created the duty to count the votes, 

 but did not locate the power or duty anywhere, 

 and that Congress, under the general power to 

 pass all laws necessary and proper to carry into 

 execution the powers given to any department 

 or to the Government of the United States, 

 may by law devolve that duty upon a commis- 

 sion or upon any person. 



" I understand this position of his to be ne- 

 cessary to another part of his argument, because 

 if the power to count the votes, which I believe 

 he expressly disclaims, is lodged in the two 

 Houses by the Constitution and is not a gen- 

 eral power to be executed by law, then this 

 power must be exercised by the two Houses 

 only and cannot be delegated ; whereas if it is 

 simply a duty imposed to count the vote, then 

 Congress may locate that duty wherever it sees 

 proper by law. The position of the Senator is 

 that neither the President of the Senate is 

 vested with this power nor are the two Houses 

 of Congress, that neither can exercise it in the 

 absence of a law passed for that purpose ; and 

 this brings us then to a very great fact, which 

 is that for eighty-four years Presidents were 

 counted in and inaugurated without any author- 

 ity in point of law by any person. The Presi- 

 dent of the Senate had no power to do it be- 

 cause there was no law authorizing him to do 

 it. The two Houses had no power to do it be- 

 cause there was no law authorizing them to do 

 it. It was a part of the Constitution which 

 had not been carried into operation by legisla- 

 tion. Now, sir, is it true that for eighty-four 

 years Presidents were counted in and inaugu- 

 rated without authority of law ? That would 

 be a very great discovery if it were true. 



"I believe that this power is vested some- 

 where, located somewhere, that if it does not 

 belong to the President of the Senate it belongs 

 to the two Houses. It is in one place or the 

 other. But whatever may be the location, in 

 theory, that the two Houses cannot exercise 

 this power without legislation I think is cor- 

 rect. 



" I do not intend now to go into an argument 

 as to the right of the President of the Senate 

 to count this vote against the powers of Con- 

 gress. I am simply stating what I have here- 

 tofore understood to be the general doctrine, 

 that in the absence of legislation the President 

 of the Senate must count this vote ; that if now 

 we fail to agree upon a bill we should simply 

 leave this question where it has been left for 

 eighty -four years; and that the President of the 

 Senate in counting this vote would be guilty of 

 no greater usurpation than he has been guilty 

 of for three-quarters of a century. 



" We are discussing this bill in the presence 

 of a case. We are discussing it in the presence 

 of an actual condition of things. I shall be 



