CONGRESS, UNITED STATES. 



147 



here, but we understand that the decision of 

 this presidential question depends absolutely 

 upon that question ; for if the principle shall 

 stand that the action of the State authorities, 

 those that are appointed to count the votes 

 and to say by State laws who are elected, 

 Rutherford B. Hayes is elected, and Mr. Tilden 

 cannot be counted in except by overturning 

 that principle. It is all in that, and the able 

 lawyers of the Democratic party on this floor 

 and everywhere understand that just as well 

 as we do. I call attention to that part of this 

 bill which gives the jurisdiction to this tri- 

 bunal : 



Every objection shall be made in writing, and 

 shall state clearly and concisely, and without argu- 

 ment, the ground thereof, and shall be signed by at 

 least one Senator and one member of the House of 

 Eepresentatives before the same shall be received. 

 When all such objections so made to any certificate, 

 vote, or paper from a State shall have been received 

 and read, all such certificates, votes, and papers so 

 objected to, and all papers accompanying the same, 

 together with such objections, shall be forthwith 

 submitted to said commission, which shall proceed 

 to consider the same, with the same powers, if any, 

 now possessed for that purpose by the two Houses 

 acting separately or together 



"I may here remark that the bill proceeds 

 upon a theory different from that of the Sena- 

 tor from Vermont in his argument. He as- 

 sumes that the Constitution does not locate 

 this power anywhere, but that it is to be lo- 

 cated by law, while this bill goes upon the 

 hypothesis that this power is located in the 

 two Houses, and that this commission shall 

 have what the two Houses have, more or less 



which shall proceed to consider the same, with the 

 same powers, if any, now possessed for that pur- 

 pose by the two ifouses acting separately or to- 

 gether, and, by a majority of votes, decide whether 

 any and what votes from such State are the votes 

 provided for by the Constitution of the United 

 States, and how many and what persons were duly 

 appointed electors in such State, and may therein 

 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. 



" First, they are required to find what were 

 the constitutional votes of a State. They are 

 required to do a thing there which in my opin- 

 ion the Constitution does not authorize, whether 

 the power to count the votes be vested in the 

 President of the Senate or in the two Houses. 

 They are required to find, for example, under 

 that provision whether the electors were eligi- 

 ble or ineligible as to their qualifications, while 

 I maintain there is no time or place under tho 

 Constitution when the votes are counted for 

 an inquiry of that kind. The duty is short 

 and simple. The President of the Senate shall 

 open the certificates in the presence of the two 

 Houses and the votes shall then be counted. 

 There is but one thing to do, and that is to 

 count the votes. There is no time, there is no 

 place, to try the question of the eligibility of 

 the electors. 



" This bill requires this commission to find 



the facts, whether these electors were duly 

 appointed. We will just put the word ' elected ' 

 instead of ' appointed,' for in this connection 

 it means the same thing. They are required 

 to find were these electors duly appointed ? 

 They are not required to find whether they 

 have been duly certified by the State authori- 

 ties as having been elected. No, sir ; but they 

 are required to find the fact were they4uiy 

 appointed or elected ? If it had said that this 

 commission shall find how many electors there 

 were, and whether they were duly certified as 

 having been elected by the State authorities or 

 the returning board created for that purpose, 

 we could understand that; but they are re- 

 quired to find the fact as to who was elected, 

 and thus, as I apprehend this bill, they are re- 

 quired to go behind the returns from the 

 States. If it was intended that they should 

 find who had been certified by the States as 

 having been appointed or elected, that would 

 be simple and easily understood ; but the bill 

 quietly and innocently requires the commission 

 to find the fact as to who was duly elected. 

 Then it provides that for that purpose they 



May therein take into view such petitions, deposi- 

 tions, and other papers, if any, as shall, by the Con- 

 stitution and now existing law, be competent and 

 pertinent in such consideration. 



"In finding the fact as to who was duly 

 elected, they are authorized to take into con- 

 sideration petitions, unsworn evidence, deposi- 

 tions, papers of all kinds, reports, everything 

 that may be put in for the information of Con- 

 gress. If these things are not to be considered 

 in determining who has been elected, then the 

 reference is useless. If this commission is to 

 be controlled by the State authorities, by those 

 who have been certified as elected by the re- 

 turning officers of the several States, then they 

 have no occasion to look at these petitions, 

 memorials, and reports. The bill invites them 

 to look at these papers, invites them for a pur- 

 pose, and there can be no use in looking at 

 them if the other principle of law is to be ob- 

 served, that they are to be governed by the 

 returns made by the officers of the several 

 States. 



" Now, Mr. President, I think I do the in- 

 telligence of these distinguished Democratic 

 Senators but justice when I say that they 

 would not go for this bill except that it gave 

 them a chance for the only thing that can 

 count Mr. Tilden in, and that is, to go behind 

 the returns. Outside of that he has no chance, 

 no possible hope ; and that these distinguished 

 and eminent lawyers go for a bill which at the 

 very beginning cuts off and shuts out this their 

 only hope, I must be excused for saying that I 

 do not believe it." 



Mr. Conkling, of New York, said: "I have 

 heard it suggested that something in this bill 

 implies, that going behind the faculties of the 

 States, going behind the lawful exercise of that 

 power which the Constitution reposes in the 

 States, and wherewith the Constitution crowns 



