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CONGRESS, UNITED STATES. 



is in the State and nowhere else. The power 

 of ascertaining whether the State has executed 

 that power justly, and according to the Consti- 

 tution and laws, is the doty which is cast upon 

 the two Houses of Congress. Now, if, under 

 the guise or pretext of judging of the regularity 

 of the action of a State or its electors, the Con- 

 gress, or either House, may interpose the will 

 of its members in opposition to the will of the 

 State, the act will be one of usurpation and 

 wrong, although I do not see where is the tri- 

 bunal to arrest and punish it except the great 

 tribunal of an honest public opinion. But, sir, 

 that tribunal, though great, though in the end 

 certain, is yet ofttimes slow to be awakened to 

 action; and, therefore, I rejoice when the two 

 Houses agree that neither of them shall be able 

 to reject the vote of a State which is without 

 contest arising within that State itself, but that 

 the action of both shall be necessary to concur 

 in the rejection. 



" If either House may reject, or by dissent- 

 ing cause a rejection, then it is in the power 

 of either House to overthrow the electoral 

 colleges or the popular vote, and throw the 

 election upon the House of Representatives. 

 This, it is clear to me, cannot be lawfully done 

 unless no candidate has received a majority of 

 the votes of all of the electors appointed. The 

 sworn duty is to ascertain what persons have 

 been chosen by the electors, and not to elect 

 by Congress." 



Mr. Morton : " I should like to ask the Sena- 

 tor, if it does not interrupt him, whether he 

 regards the five judges acting on this commis- 

 sion as acting in their character as judges of 

 the Supreme Court, if that is their official 

 character, and that this bill simply enlarges 

 their jurisdiction in that respect ? " 



Mr. Bayard : " Certainly not, Mr. President. 

 They are not acting as judges of the Supreme 

 Court, and their powers and their jurisdiction 

 as judges of the Supreme Court are not in any 

 degree involved ; they are simply performing 

 functions under the Government not inconsist- 

 ent, by the Constitution, or the lafw, or the pol- 

 icy of the law, with the stations which they now 

 hold. So I hold that the employment of one 

 or more of the Supreme Court judges in the 

 matter under discussion was appropriate legis- 

 lation. We have early and high authority in 

 the majorities in both House and Senate in the 

 bill of 1800, in both of which Houses a bill 

 was passed creating a commission similar to 

 that proposed by this bill, and calling in the 

 Chief-Justice of the United States as the chair- 

 man of the grand committee, as they called it 

 then, a commission as we term it now." 



Mr. Thurman, of Ohio, said : " Mr. Presi- 

 dent, it has been said that this bill is novel. It 

 is novel neither in principle nor in its frame- 

 work-^and he who thinks it is novel must 

 think so because he has not carefully studied 

 the Constitution of his country or read its his- 

 tory with profit. Again, it has been said that 

 it goes outside of the Constitution. It does 



not go outside of the Constitution, unless the 

 opinions of the most eminent men who have 

 lived since the Government was formed are 

 worthy of no regard. Again, it is said that it 

 constitutes a court to decide a single and ex- 

 isting case. Why, sir, if that were true, the 

 case to be decided by it is one of such tran- 

 scendent importance, one upon which the in- 

 terest and prosperity, and perhaps the peace 

 of forty-odd millions depend, a question so 

 transcendent that the very perpetuity of the 

 republic itself may depend upon its peaceable 

 solution if it were so that the bill constitutes 

 a court for the decision of a single case, there 

 never was greater reason to constitute a court. 

 Before the importance of this subject other 

 jurisdictions sink into comparative insignifi- 

 cance. If the tribunal to be created by this 

 bill shall render a judgment that in the opinion 

 of enlightened history shall be a sound, and 

 honest, and just judgment, it will be one of 

 the grandest tribunals in the minds of students 

 and in the reverence of the people of this re- 

 public that ever sat in this land. 



" Again, it is said that it will give the making 

 of the President to one man. Assuming that 

 the five Senators who are chosen will be so 

 partisan, that the five Representatives who 

 are chosen will be so partisan, that the five 

 judges who may be on that tribunal may be 

 so partisan and corrupt that every one of them, 

 disregarding his honor, disregarding his obli- 

 gations to his country, disregarding his obliga- 

 tion to truth and to law and to justice, disre- 

 garding the solemn oath that he is to take as a 

 member of the commission, will be so corrupt 

 that he will have no other guide for his deci- 

 sion than the behest of party, it is said that 

 the decision will be that of one man, as the 

 fifteenth member happens to be a Democrat or 

 a Republican. I say with the Senator from 

 Michigan that if the public men of this country 

 have reached that depth of corruption and 

 degradation, our institutions have lasted too 

 long. 



" It has been further said that this bill in- 

 fringes the prerogative of the President of the 

 Senate. After the argument of the Senator 

 from Vermont and of the Senator from New 

 York I shall certainly not speak upon that 

 point. I have one single remark, however, to 

 make to those who are talking about adhering 

 to precedents, and who say that we want no 

 law, that all we have to do is to go on as we 

 have done for eighty years or more. I want 

 to say to them that I defy any man to show 

 me one single instance in which the President 

 of the Senate ever decided a disputed ques- 

 tion in respect to an electoral vote. You can- 

 not find in all our history one single instance. 

 The only time that ever there was an expres- 

 sion by a President of the Senate upon that 

 subject was the positive disclaimer by Mr. 

 Mason that he had any such authority. So 

 much for that. 



" Now I come to the amendment of the Sn- 



