CONGRESS, UNITED STATES. 



157 



when the House and Senate have determined 

 on the subject ; not the Supreme Court, not 

 a committee, but the House and the Senate. 

 When they have determined the count, if there 

 be no election, then the House is to proceed 

 at once to elect the President of the United 

 States. 



" Now, I say that, in my judgment, this 

 power to count and determine is, by the Con- 

 stitution, conferred upon the two Houses, to 

 be executed by joint or concurrent action. I 

 think Mr. Jefferson said I have it not at hand 

 before me that it should have been done by 

 joint action. I think that was his view. How- 

 ever, the practice of eighty years would govern 

 in that matter. Whether it should or should 

 not, there is one pregnant fact that I desire 

 every Senator to take into his mind, and that 

 is this : The number of Representatives and 

 Senators is just exactly the number of your 

 electoral vote. 



" Concurrent action has been the rule and 

 precedent for nearly a hundred years ; but I 

 now desire to assert and I have not yet heard 

 it denied by any Senator who favors this bill 

 that the power to count, scrutinize, and de- 

 termine the electoral vote is conferred by the 

 Constitution upon the two Houses, and must 

 be by them exercised until the instrument is 

 amended. I know that my honorable friend 

 from Ohio sought to take shelter under the 

 eighth section of the first article, which con- 

 fers on Congress power ' to make all laws 

 which shall be necessary and proper for carry- 

 ing into execution the foregoing powers, and 

 all other powers vested by this Constitution in 

 the Government of the United States, or in 

 any department or office thereof.' 



"Now, permit me to say right here, that 

 that section does not refer to a conferred 

 power which can be executed by the officer or 

 the body on whom it is conferred, any more 

 than yon can legislate upon an absolute power 

 conferred by the Constitution upon the Presi- 

 dent of the United States to be Commander- 

 in-Chief of the Army and Navy. You cannot 

 make him lieutenant-general or rear-admiral. 

 No sort of legislation can do it. If this power 

 is absolutely conferred, either directly or by 

 implication, it does not come under that sec- 

 tion of the Constitution at all. It executes it- 

 self, as the ballot executes itself." 



Mr. Thurman : " Does the Senator mean to 

 say that Congress cannot control the power of 

 the President as Commander-in-Chief of the 

 Army and Navy ? " 



Mr. Eaton : " No, I did not say so. I meant 

 to say that you cannot take from him that 

 position; and I meant to say, that, if you and I 

 have the authority to count and scrutinize and 

 determine these votes, no power on earth can 

 take it from us, and we cannot divest our- 

 selves of that power. That is just what I mean 

 to say, if it be so and it is my opinion that it 

 ifl so ; I believe it is so. On my constitutional 

 oath I believe that I have that power, and 



therefore I cannot vote with you for this bill. 

 I should sacrifice my honor as a man and a 

 gentleman in doing it. The men who believe 

 differently will vote differently. I cannot. I 

 believe this power is vested in the Senate and 

 House of Representatives, and it is for us to 

 exercise it, not dodge nor shirk nor avoid it, 

 but do our duty under it. I shall, so far as I 

 am able." 



Mr. Thurman: "Those are hard words 

 ' dodge ' and ' shirk.' What does the Sena- 

 tor mean ? " 



Mr. Eaton : " I beg the Senator to under- 

 stand that I meant this : I cannot dodge or 

 shirk a power that I believe is vested in me by 

 the Constitution. I had before that said I 

 should be dishonored to do it. God forbid 

 that I should say that my honorable friend 

 here or my honorable friend there should be 

 dishonored in carrying out what they believe 

 to be their constitutional power. I speak for 

 myself, for nobody else. 



"Mr. President, I am giving my reasons 

 why I cannot vote for this bill. 1 do not sup- 

 pose anybody will conceive that thf y are of the 

 slightest value, but they are to me. Two new 

 factors are introduced by this bill, entirely un- 

 known before. First, outsiders five men not 

 known ; the very committee, who say (not, 

 perhaps, all of them, but many of them) that 

 the House and Senate have absolute power 

 over this matter bring in a new factor in the 

 shape of five judges of the Supreme Court. 

 The next factor they bring in is the President 

 of the United States. What business has he 

 in this matter ? You cannot make a bill ; you 

 cannot pass a law ; you cannot legislate upon 

 this subject, unless the President of the United 

 States agree with you, without having two- 

 thirds of the House and two-thirds of the Sen- 

 ate ; and it will take two-thirds of both Houses 

 under this bill in order to count an electoral 

 vote, unless the gentleman at the other end of 

 the Avenue agrees to it. It is an absolutely 

 new factor. Heretofore a majority of each 

 House has had the power to count and deter- 

 mine ; but the committee say, under this bill, 

 that they must have two-thirds, unless they 

 can get another factor with them the Presi- 

 dent of the United States. 



" Under this bill the power of the House is 

 taken from it which is conferred by the Con- 

 stitution. The House, as I said before, under 

 certain contingencies, is to elect the President 

 of the United States. By this bill the House 

 cannot determine whether that contingency 

 arises; it is to be determined by somebody 

 else, not the House. 



" I do not care to elaborate on this matter. 

 The measure, in my judgment, is in violation 

 of the Constitution ; in violation of that power 

 which is vested in the two Houses, and cannot 

 by them be delegated to any other body or 

 class of men. Therefore I cannot vote for 

 this bill." 



The President pro tempore : " The amend- 



