CONGRESS, UNITED STATES. 



151 



conducted under concurrent resolutions of the 

 two Houses, appointing their respective com- 

 mittees to join ' in ascertaining and reporting 

 a mode of examining the votes for President and 

 Vice-President.' 



" The respective committees reported resolu- 

 tions fixing the time and place for the assem- 

 bling of the two Houses, and appointing tellers 

 to conduct the examination on the part of each 

 House respectively. 



"Mr. President, the office of teller or the word 

 ' teller ' is unknown to the Constitution, and 

 yet each House has appointed tellers and has 

 acted upon their report, as I have said, from 

 the very foundation of the Government. The 

 present commission is more elaborate, but its 

 objects and its purposes are the same, the in- 

 formation and instruction of the two Houses 

 who have a precisely equal share in its creation 

 and organization; they are the instrumentali- 

 ties of the two Houses for performing the high 

 constitutional duty of ascertaining whom the 

 electors in the several States have duly chosen 

 President and Vice-President of the United 

 States. Whatever is the jurisdiction and pow- 

 er of the two Houses of Congress over the 

 votes and the judgment of either reception or 

 rejection, is by this law wholly conferred upon 

 this commission of fifteen. The bill presented 

 does not define what that jurisdiction and pow- 

 er is, but it leaves it all as it is, adding nothing, 

 subtracting nothing. Just what power the 

 Senate by itself, or the House by itself, or the 

 Senate and the House acting together, have 

 over the subject of counting, admitting, or re- 

 jecting an electoral vote in case of double re- 

 turns from the same State, that power is by 

 this act, no more and no less, vested in the 

 commission of fifteen men; reserving, however, 

 to the two Houses the power of overruling the 

 decision of the commission by their concurrent 

 action. 



" The delegation to masters in chancery of 

 the consideration and adjustments of questions 

 of mingled law and fact is a matter of familiar 

 and daily occurrence in the courts of the States 

 and of the United States. 



" The Circuit Court of the United States is 

 composed of the district judge and circuit judge, 

 and the report to them of a master is affirmed, 

 unless both judges concur in overruling it. 



" Under the present bill the decision of the 

 commission will stand unless overruled by the 

 concurrent votes of the two Houses. 



"I do not propose to follow the example 

 which has been set here in the Senate by some 

 of the advocates as well as the opponents of 

 this measure, and discuss what construction ia 

 to be given and what definition may be ap- 

 plied or ought to be applied in the excersise of 

 this power by the commission under this law. 



" It will be observed that all the questions 

 to be decided by this commission are to be con- 

 tained in the written objections. Until those 

 objections are read and filed, their contents 

 must be unknown, and the issues raised by 



them undescribed. But whatever they are, 

 they are submitted to the decision of the com- 

 mission. The duty of interpreting this law 

 and of giving a construction to the Constitu- 

 tion and existing laws is vested in the commis- 

 sion ; and I hold that we have no right or 

 power to control in advance, by our construc- 

 tion, their sworn judgment as to the matters 

 which they are to decide. We would defeat 

 the very object of the bill should we invade 

 the essential power of judgment of this com- 

 mission and establish a construction in advance 

 and bind them to it. It would, in effect, be 

 giving to them a mere mock power to decide 

 by leaving them nothing to decide. 



" I heard the question asked of the honora- 

 ble Senator from Ohio (Mr. Sherman), by his 

 colleague (Mr. Thurman), the other day, why 

 it was that he should have been condemned a 

 year or so ago for not giving a construction to 

 a certain act entitled ' An act to provide for 

 the resumption of specie payments.' Why, 

 sir, that act was, in all its terms, mandatory. 

 It commanded the Secretary of the Treasury 

 to do a certain act. Now, what we meant him 

 to do was what we should have expressed ; 

 and when an order was given by Congress, it 

 was reasonable to ask, ' What construction do 

 you put upon your own order ? ' And it was 

 such a question the honorable Senator (Mr. 

 Sherman) declined to answer, or to say what he 

 meant in his orders to the Secretary of the 

 Treasury. But in the present case we submit 

 the decision as to the matters in question to a 

 certain tribunal, and we command them to do 

 nothing but exercise their own judgment. What 

 that judgment will be we cannot foretell, and 

 we have no right to ask. It is their judgment 

 we seek. What does this commission decide ? 

 It is to pass upon cases of double returns. As 

 to single returns there is no submission to it. 

 What does it decide? That a certain one of 

 two returns is the true return from a State. 

 This decision being made, the returns are re- 

 duced in number to a single return. The case 

 assumes the condition contemplated by sec- 

 tion 1 of the bill, relating to votes from any 

 State from which but one return has been re- 

 ceived, and which can be rejected only by the 

 affirmative vote of the two Houses ; the power 

 of the two Houses is precisely the same in 

 either case, and under both sections of the bill 

 nothing more of their power is relinquished 

 in one case than in the other. 



" Mr. President, there are certainly very 

 good reasons why the concurrent action of 

 both Houses should be necessary to reject a 

 vote. It is that feature of this bill which has 

 my heartiest concurrence ; for I will frankly 

 say that the difficulties which have oppressed 

 me most in considering this question a year or 

 more ago, before any method had been devised, 

 arose from my apprehensions of the continued 

 absorption of undue power over the affairs of 

 the States; and I here declare that the power, 

 and the sole power, of appointing the electors 



