150 



CONGRESS, UNITED STATES. 



after the debate of to-day, I believe that Mas- 

 sachusetts would hold me responsible if I did 

 not make some effort to define by law the 

 jurisdiction of this court, so that it might not 

 take jurisdiction of that which belongs to the 

 State of Massachusetts, to the State of New 

 York, and to all the States. However much 

 I might have hesitated, before this debate 

 commenced, to undertake to offer any amend- 

 ment to the work of the committee, so anxious 

 was I to see the bill become a law, yet after 

 the debate of to-day has put upon the record 

 that the phraseology of this bill has been so 

 framed as to put no limit whatever upon the 

 jurisdiction of this court except that which 

 the court itself shall set to its jurisdiction, I 

 beg to offer an amendment to the bill. There- 

 fore, at the end of the eighty-sixth line, on the 

 sixth page, I move to insert the following, and 

 I will only say that it is the language taken 

 from the bill of 1800 as it was reported to the 

 Senate : 



Provided, That no petitions, exceptions, or other 

 paper shall be considered by said commission which 

 has for its object to dispute or draw into question 

 the number of votes given for an elector in any of the 

 States, or the fact whether any elector was chosen 

 by a majority of the votes of said State." 



Mr. Bayard, of Delaware, said: "It will be 

 observed that this bill is enacted for the pres- 

 ent year, and no longer. 



" This is no answer to the alleged want of 

 constitutional power to pass it, but it is an an- 

 swer, in great degree, where the mere policy 

 and temporary convenience of the act are to 

 be considered. 



" In the first place the bill gives to each House 

 of Congress equal power over the question of 

 counting, at every stage. 



"It preserves intact the prerogatives, under 

 the Constitution, of each House. 



" It excludes any possibility of judicial deter- 

 mination by the presiding officer of the Senate 

 upon the reception and exclusion of a vote. 



" The certificates of the electoral colleges will 

 be placed in the possession and subject to the 

 disposition of both Houses of Congress in joint 

 session. 



" The two Houses are coordinate and separate 

 and distinct. Neither can dominate the other. 

 They are to ascertain whether the electors 

 have been validly appointed, and whether they 

 have validly performed their duties as electors. 

 The two Houses must, under the act of 1792, 

 'ascertain and declare' whether there has 

 been a valid election, according to the Consti- 

 tution and laws of the United States. The 

 votes of the electors and the declaration of the 

 result by the two Houses give a valid title, and 

 nothing else can, unless no majority has been 

 disclosed by the count ; in which case the duty 

 oftRTHouse is to be performed by electing a 

 President and of the Senate of electing a Vice- 

 President. 



"If it be the duty of the two Houses ' to as- 

 certain ' whether the action of the electors 



has been in accordance with the Constitution, 

 they must inquire. They exercise supervisory 

 power over every branch of public administra- 

 tion and over the electors. The methods they 

 choose to employ in coming to a decision are 

 such as the two Houses, acting separately or 

 together, may lawfully employ. Sir, the grant 

 of power to the commission is in just that 

 measure, no more and no less. The decision 

 they render can be overruled by the concurrent 

 votes of the two Houses. Is it not competent 

 for the two Houses of Congress to agree that 

 a concurrent majority of the two Houses is 

 necessary to reject the electoral vote of a 

 State? If so, may they not adopt means 

 which they believe will tend to produce a con- 

 currence? Finally, sir, this bill secures the 

 great object for which the two Houses were 

 brought together: the counting of the totes of 

 the electoral college ; not to elect a President 

 by the two Houses, but to determine who has 

 been elected agreeably to the Constitution and 

 the laws. It provides against a failure to 

 count the electoral vote of a State in event of 

 disagreement between the two Houses in case 

 of single returns, and, in cases of contest and 

 double returns, furnishes a tribunal whose com- 

 position secures a decision of the question in 

 disagreement, and whose perfect justice and 

 impartiality cannot be gainsaid or doubted. 



" The tribunal is carved out of the body of the 

 Senate and out of the body of the House by 

 their vote viva wee. No man can sit upon it 

 from either branch without the choice openly 

 made by a majority of the body of which he is 

 a member that he shall go there. The five 

 judges who were chosen are from the court of 

 last resort in this country, men eminent for 

 learning, selected for their places because of 

 the virtues and the capacities that fit them for 

 this high station. 



" Mr. President, objection has been made to 

 the employment of the commission at all, to 

 the creation of this committee of five Senators, 

 five Representatives, and five judges of the Su- 

 preme Court, and the reasons for the objection 

 have not been distinctly stated. The reasons 

 for the appointment I will dwell upon briefly. 



" Sir, how has the count of the vote of every 

 President and Vice-President from the time of 

 George "Washington and John Adams, in 1789, 

 to the present day been made? Always,. and 

 without exception, by tellers appointed by the 

 two Houses. This is without exception. Even 

 in the much commented case of Mr. John Lang- 

 don, who, before the Government was in oper- 

 ation, upon the recommendation of the Consti- 

 tutional Convention, was appointed by the Sen- 

 ate its president for the sole purpose of open- 

 ing and counting these votes. He did it, as 

 did every successor to him, under the motion 

 and authority of the two Houses of Congress, 

 who appointed their own agents, called tellers, 

 to conduct the count, and whose count being 

 reported to him was by him declared. 



" From 1793 to 1865 the count of votes was 



