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1884. ~NGRESSIONAL R~CORD HOUS~. =~ --~ ·- -~-- ~- -~ 

5457 

concerned, for President of the United State . Tho e who had voted 

for Burr in tended to make him Vice-President, while the votes for J efferson were intended for him for President; and yet when they came to the 

count under that Constitution the result showed, as set forth, Jefferson 

73, and Burr 73, without any distinction in the vote of the electoral 

college to enable the fact to appear which votes were in tended for President or which for Vice-President; and thus came the first strain upon 

our institutions under that Constitution. From February 11 to 17 inclusive thirty-five ballot:s were taken, ea~h resulting in giving eight 

Stc'l.tes to Mr. Jefferson, six States to 1rlr. Burr, with the votes of two 

States divided. On the thirty-sixth ballot ten States voted for J efferson, four for Burr, and two in blank. 

Thus this strain upon the Constitution ended, bnt the bitterness and 

dangers of the contest prepared the country for an amendment of the 

Constitution. And, at this day and amid the criticisms of this time, 

it is perhaps permissible to look back to that struggle and consider 

some of the comments that have been made upon it. Judge Cooley, 

in the International Review for April, U378, said: 

On that occasion Mr. Burr, though probably not the choice of a. single elector, 

might h a ve been and probably would have been cho en but for the patriotism 

oflUr. Hamilton and a few others among the Federalists who protested against 

it. But l\Ir. Jefferson's election was not accomplished until after the subject of 

tilling the position in some extraconstitutional mode had been mooted, the at- tempt to do which would probably have been resisted by force. 

While the late Senator Oliver P. Morton, in theN orth American Review, July-August, 1877, makes the following statement: 

In 1801 the House of Representatives balloted for a number of days without 

making choice of a President. The 4th of March was approaching, and there was danger of its coming without a President being elected-danger of an interreg- num. On the night of the day before the election a member of the House, who 

represented a State that had but one member, went to a friend of 1\Ir. Jefferson, 

and said to him: "If 1\lr. Jefferson will give assurance that he will retain the collector of the port of WilmingtQn, in Delaware, and at Philadelphia, and will give two bills (which were named) his approve!, I will change my vote to-morrpw, 

and know of two other members from two different States who will change their votes. The effect of it will be to change the votes of those States, and give to ~1r. Jefferson three additional votes, which will elect him." The message was carried to Mr. Jefferson, so said his friends, and on the next morning the assur- ance was given that the two collectors should be retained and the laws approved. 

The three members that da.y did chang(} their votes, and Mr. Jefferson was elected. 

This is a part of the history of the -times, and I give yon my authority. It indicates distinctly and forcibly the dangers that may 

come upon any body-politic by the existence of a controversy for which 

there is no fixed rule of settlement, and which may be determined by 

party spirit or political needs or the expectation of benefits to be secured 

by continuing one party in power or by the giving of supremacy to another. 

Mr. JORDAN. Let me ask the gentleman a question. 

Mr. PARKER. Certainly. 

Mr. JORDAN. Have yon authority for the statement that Thomas 

Jefferson agreed to any proposition of that. kind, except the statement 

of Senator Morton? 

Mr. PARKER. I make no assertion on any other authority than 

that which I have given. I have given that of the great Senator, the 

:war governor of Indiana, a man with whom few cared to contend in 

his lifetime here or elsewhere, and who as far as I know no man has 

criticised since his death. I repeat to yon merely what he has written. 

Mr. HUNT. Will you be kind enough to name the member from 

Delaware to whom reference was made? 

Mr. PARKER. I have no knowledge on that point. I refer yon to 

Mr. Morton's statement and to the history that must have existed back 

of it. FIFTH ELECTORAL COUNT. 

February, 1805, the first count was had under the new Constitution. 

The electors chosen at the election of 1804 were the first who voted 

for a Vice-President as such. The two Houses met, and the President 

of the Senate, Aaron Burr, broke the seals of the returns, the senatorial 

teller read aloud the returns, the House tellers compared them, and the 

President of the Senate declared the result. Objections were made by 

petition on the part of citizens of Massachusetts to the counting the 

votes of that State, upon the ground that the Legislature had not sought 

the approval of the governor of the State, as required. Mr. Randolph 

stated that the electors were as much the judges of their own qualifications as members of the House of Representatives were of theirs, and 

said: 

It appears to me as competent to the people of any part of this country to prefer a petition tQ the electoral college to set aside the returns of any members 

of Congress as to prefer petitions to this House to set aside the qualification& of 

electors. 

After much comment it seemed to be the better opinion that interference with the title of electors by Congress would form a dangerous precedent and the petitions were disregarded. 

SIXTH ELECTORAL COUNT. 

· February, 1809, the two Houses as such met with tellers, and the 

returns were opened and the votes conn ted and declared as before, with no new questions arising. 

SEVENTH ELECTORAL COUNT. 

February, 1813, the two Houses as such assembled, and the returns 

XV- 342 

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were opened and the votes counted and declared as before no especial 

features appearing. EIGHTH ELECTORAL COUNT. 

February, 1817, the two Houses as such met as before. The three 

electors of the new State of Indiana nad been chosen before she was declared admitted into the Union by Congress. A member oftheHon e 

ofRepre entatives from New York sought to object to these votes and 

to state his reasons therefor. The Speaker interrupted him, and the 

Senate upon the vote of its own body retired to its own Chamber. The 

question was discussed at some length, and the House again met, and 

the votes of the new State were counted. 

Mr. ADA.lriS, of Illinois. Was the question directly raised? 

. Mr. PARKER. The question was argued incidentally but not directly. It was argued by members of the two Houses as such in their 

separate meetings. But there was no argument in the convention. 

1\Ir. EATON. It was not fully argued. 

Mr. PARKER. As the chairman of the committee suggests, it was 

not fully argued, bnt was left, as many of these other controversies were, 

in abeyance, a final explicit decision being passed over and avoided as upon a question which it was dangerous to be too definite about. 

:Mr. ADAMS, of lllinois. Objection was made while the two Houses 

were sitting together? 

1\Ir. PARKER. O"Qjection was made, and the question came np, 

and without being directly decided, the vote was counted. 

It is easy to see that bad the question of the success of one party or 

the other depended upon the counting or rejection of these 3 votes a 

political convulsion might have followed, but James Monroe had 180 

electoral votes out of the 210, not counting Indiana, and disturbance 

was readily avoided. l'<LNTH ELECTORAL COUNT. 

February, 1821, the two Houses as such met as before. A controversy occurred as to the counting of the 3 votes of the new State of Missouri. After mncb debate and amid considerable clamor the votes were 

counted. James Monroe bad 231 of the 232 electoral votes ca t for 

President. 

As a result of these contests we are told that in the Eighteenth CongresS, as well as several others, resolutions proposing to amend the Constitution were introduced. Thomas H. Benton is reported to have said 

in connection with one of them: 

Two questions of great delica~y now present themselves. 

1. If electors are not appointed according to the Constitution, can their votes be counted? 

2. If objected to, who shall judge them? . It is the duty of the two Houses of Congress to c;ouut the votes. Can they count unconstitutional votes? 

If they can not, shall they not judge every vote before it is counted? 

TENTH ELECTORAL CO-m.'"T. 

At the election of 1824no choice of President was made by the electors. Andrew Jackson had 99 votes, John Q. Adams 84, William H. 

Crawford 41, and Henry ClaY' 37; whole number of electors, 261; no 

one having a majority, the choice devolved upon· the House of Representatives, voting as States, each State having one vote. 

This election was, like many campaigns since that date, a struggle of 

party chiefs for supremacy and power. The vote, taken in February, 

1825, stood: For Adams, 13votes; for Jackson, 7votes; for Crawford, 4 

votes. Jackson had a large proportional popular vote and more ~lectors 

than any other, bnt failed of an election. Ur. Clay threw his vote and 

influence for Mr. Adams, who was thereby elected1 ·and Mr. Clay became his Secretary of State. The charge of "corruption" was fiercely 

made, and the cry of "the coalition" followed both as long as they 

lived. 

Mr. EATON. You ought to state tberewhethertheywereallmembers of the same party. 

Mr. PARKER. The chairman of the committee suggests they were 

members of the same party. 

Mr. EATON. I asked yon if they were not. 

Mr. PARKER. I think not. 

Mr. EATON. It might interfere with your argument. 

Mr. PARKER. I presume my opinion upon that point as I have 

read the history of that time would not agree with that of the gentle- man from Connecticut. 

~'TH AND TWELRTH ELECTORAL COUNTS. 

In each of these counts the two Houses met as before and the packages were opened, lists made, the votes stated, and the result announced 

according to the precedents given. 

THIRTEENTH ELECTORAL COUNT. 

In this count the preliminary proceedings were according to the prec--

edents, but questions were presented and debated by the respective 

Houses as to the admission of votes cast by electors holding appointments under the Federal Government, and the State of Michigan had 

chosen her electors before her admission into the Union. All of the 

votes were counted, as the result was not affected, but an effort was made to prevent these cases from being regarded as fixed precedents. 

All of these cases showFirst. That the two Houses met and a~ as separate and independent Houses, and never acted for a moment as a "joint convention. 

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5458 CONGRESSIONAL RECORD-HOUSE. JUNE 21, 

S~concl. That t~e Houses avoided with especial and particular care 

~ll mte~ference With encroachment upon the rights of States in appointmg therr electors. 

The fourteenth count was without especial features and was conducted as were others described. • ' 

THE FIFTEE::iTH COUNT • . 

This <:,ount occurred in February, 1845. At the previous election the 

thirty- ix electors ofthe State of New York were turned from Henry 

Clay to James K . Polk by the drawing off of the anti-slavery Birney 

vote of between five and six thousand. New Yorks electoral vote 

thrown for Clay would have elected him President, and would doubtless have changed .the fortunes of men and the history of the country. 

'file fifteenth, sixteenth, and seventeenth counts proceeded i,n the 

usual. manner, the ~":o Houses as such meeting and acting, nothing of 

espec1al note transprrmg. 

THE EIGHT~~H COUNT. 

The day for the voting by the electors fell on December 3; by reason 

of a severe storm the electors of the State of Wisco1!L..<Un were prevented 

from voting until the 4th; objection was made to the counting of the 

vot-es on that ground and a long debate occurred in each House in relation theretD, but the votes were allowed to stand as announced 

although the result was nowise affected. A great deal of criticism and 

contention arose o"\'er the question of the riahts of a State and of the 

two Ho~es and the establishment of a dang~rous precedent. 

The nmeteenth count was without pa,rticnla,r incident. 

TWENTIETH COUNT. 

This count arose upon the election of 186-1. And the question was 

forced upon the two Honses as to what consideration should be given 

to the electoral votes of States in rebellion, or not yet returned to full 

relations with State3 ofthe Union, and the question might involve not 

only States in actual armed rebellion, but also such as were partially 

reconstructed. 

The counting of the votes occurred February 8, 1865. On February 

4, after a long debate, Congress passed a joint resolution excluding from 

the electoral count all votes from eleven States the inhabitants and 

local authorities of which were in rebellion, which resolution was sent 

to the President. Then, on February 6, Senator Trumbull reported 

the twenty-second joint rule, which was immediately adopted by both 

Houses. 

While the excluding resolution was in the hands of the President the 

day for the count came, and. the count proceeded under the new joint 

rule. On the day of the count President Lincoln signed the resolution, 

which was returned to the SenateFebruary10, with a message disclaiming confidence in it or re ponsibility for it. 

The spirit and effect of this rule is in the following words: 

~upon the reading of .any rsuch] certificat_e by the tellers any que tion shall 

ariSe m regard t<>. c~mntlng the votes therem certified, the same having been 

stated by the pres1ding officer, the Senate shall thereupon withdraw, and the 

question shall thereupon be submitted to that body for its decision. And the 

Speaker of the Hou e of Representatives shall in like manner submit said ques- tion to the House ofRepre!Eintatives for its decision. And no question shall~ 

decided affirmatively, and no vote objected to shall be counted, except by the concurrent votes of the two Houses. 

Under this twenty-second joint rule the twentieth: twenty-first, and 

twenty-second electoral counts took place, the rule being in effect that 

in ca e of controversy the State should be excluded unless the two 

Houses concurred in receiving the vote. On the twentieth count only 

the votes of twenty-five States were counted. On the twenty-first count 

Georgia was counted hypothetically and a long debate upon the rights 

of Houses and of States accompanied the proceedings. On the twentysecond count three votes of the State of Georgia were not counted by 

reason of their having been cast for Horace Greeley after his death. 

The votes offered from Arkansas were excluded upon the ground that 

they were not properly certified, the House voting to receive them and 

the Senate voting that they should not be counted. Louisiana presented double antagonistic returns, and her votes were excluded by the 

concurrence of the two Houses. 

This brief review brings the history of the counts down to the momentous controversy of 1876-'77- the Hayes-Tilden cont-est, the Electoral Commission result, and the famous struggle, the points of which 

are distinctly in the remembrance of all. 

There may well be grave doubts whether the painful recollections of 

the horrors of the war of the rebellion did not do much to prevent an appeal to force in 1877. And one party was as grateful as the other 

that the majority in 1 0 was sufficiently large to preclude the possibility of dispute upon it. 

During the whole lifetime of the Republic under the Constitution 

efforts bave been made, from time to time, to amend the Constitution 

and to enact legislation which should secure a plain, just, and safe 

method of canva ing and counting the ~lectoral votes. But we are now approaching the twenty-fifth electoml count conscious of the perils 

we may encounter but with no. preparation to escape them. · Alexander Hamilton in the Federalist quotes approvingly and italicises the following from the essays ofHume: 

To balance a large state or society, whether monarchical or republican, on general laws, is a work of so great difficulty, that no human genius, however 

comprehensive, is able by the mere dint of r eason and reflection to effect it. 

The jud~ment of ~an~ must unit~ in the work; eXperience must guide their 

labor; trme ~ust brmg 1t to perfectiOn, and the feeling of inconvenience!! must cor~ect the lD.lStakes which they inevitably fall into in their first trials and ex- perrments. 

It was the theory of the makers of the Constitution that the electors 

should be cho en from the best and most trusted men of the State and 

that they should confer and deliberate, and themselves select and d~sia­ nate the man, not of the people s choice, but of their own choice. o 

The theory was that the people could not be intrusted with o delicate and important a privilege as the selection of a ruler. It was a theory inllerited from the go,ernments of Europe. 

The scheme of the first con titution was that the elector should vote 

a<:cording to his private judgment and by a secret ballot for ''two persons," and that the man receiving the most of these votes should be 

President and the next highest on the list should be Vice-President 

and the public :were to accept the selection "Without directino- ct. ' 

The twelfth amendment, after the contest between J efferso; and Burr 

after th.e election ~f 1800, only chang~d the. scheme, by providin? fo~ the votmg for President and Vice-PreSident, 1DStead of voting for ' two 

persons," but the theory of the independence of the electors to select 

the President and Vice-Pr~ident~thoutregard to the opinions or preferences of the. people r~mamed undisturbed. It was as little expected 

that t~e public would influence the selection as it would be that popula~notio.ns should control the decision of a court of equity. But all of 

thiS rapidly changed. The development of politics and ofpoliticians· 

the collisions of the ambitions pf men; the growth of the people ~ numbers, substance, and intelligence; the alignment of great bodies of 

men upon questions affecting the feelings and the interests of the masses 

soon. developed the voters of the nation into the dictators of electors and 

the direct creators of Presidents and administrations until with no written change in the fundamental instrument, it has been for more than 

half a century the univ.ersal judgment that an elector who should disregard his party's will in casting his electoral vote would be reaarded as unapproachably infamous. 0 

Thus has grown up a change of method tremendous in its effects. 

The President, instead of being selected by the almost judicial judgment of a few selected men, is the chosen nopular chieftain of the party 

~ wh!cl~ he belongs, ?bligated so far as he lawfully may to represent 

1ts pnnCiples and policy and to develop its power. It is in the contest between great parties arrayed against ea<:h other contendino- for 

po~tical supremacy in the nation, that the danger to 'our institutionsexists; and the very focal point of danger is at the electoral count. 

~s the governments of the world are organized the Presidency of thE7 

Umted States is the greatest political prize for which men or parties 

may c~mtest. Hamilton says "a nation without a national government lS an awful ~~tac~~-" A ~tion divided into two great parties, 

each honestly believrng nself entitled to govern under the Constitution and the laws, with no tribunal having the conceded and recoanized right to decide the questions at issue, may present a spectaclE7 

more awful still. 

Ur. Speaker, I shall now ask some attention directly to the bills under consideration. It will be admitted on all hands I believe that 

it is our duty to pass some law which shall remedy the troubl~ we, 

have been threatened with, and that the matter can only be settled 'hy 

the passage of a law or an amend.ment of the Constitution. Rules and 

joint rules have been exhausted. There is not time to amend the Constitution with a Presidential election approaching, and we are therefore called upon to pass the best law we can under the circumstances 

b:y which we are surr~m~ded . This law should be such as experience 

dictates and the pubhc Judgment expects of us. The public demands 

a fair law, one that shall be a just and fixed rule of action for such 

necessary procedure as the Constitution has not elaborated. 

This, then, is our problem: to enact a law fair and wise, consistent with 

the Constitution, regulating the determination of such preliminary incidental and collateral questions as shall arise upon the return of thevotes and the count. The vote to be counted is the vote of the State. 

The vital question is, what or which is the vote of the State? This 

settled, Congress has no power or right except to accomplish the count. 

I now call attention to these two ~ills which are before us; and I 

take it our action will naturally and probably be limited tooneofthe.BE7 

two bills. The Senate bill provides for the meeting of the electors substantially in a-ecordance with the existing law. It also provides that 

each State, pursuant tD its laws existing on the day fixed for the meeting of the elector , may determine at least six days before the meeting of the electoral college any controversy respecting the appointment 

of any of them. And here I will notice that the chairman of the 

House committee seems to criticise the provisions of the Senate bill and 

to argue that those provisions if carried out will bring us into trouble 

instead of giving us peace and quiet. I do not assent to his views. The first section of the Senate bill provides .for the meeting of the 

electors. The second section provides- . 

SEC. 2. That each State may, pursuant to its laws existing on the day fixed 

for the appointment of the elect<>rs, try and determine, at least six days be- fore the time fixed for the meeting of the electors; any controversy concern- ing their appointment or the appointment of any or them. Every such deter- mination malile pursuant to such law so existing on said day, and made at least 

si.x days prior t<> the said time of meeting of the elect<>rs, shall be conclusive 
1884. CONGRESSIONAL RECORD-HOUSE. 5459 

evidence of the lawful title to office of the electors who shall have been so determined to have been appointed, and shall govern in t.he counting of the electoral votes, as provided in the Constitution and as hereinaft.er regulated. 

This is the provision that the State itself, six days before the time of 

the casting of the electoral -.ote, may, within its own borders and by 

its own powers, decide what the vote of the State is and what is the 

vote which shall be presented to the President of the Senate to be 

counted as the vote and the voice of the State. Among the general provisions for the counting of the votes is a provision for the meeting of 

the two Houses as such, each House retaining its organized form from 

beginning to end, each being an independent body. 

The first great point of difference between the bills is, that the Senate 

bill provides for this final decision of the States, and the second is that 

the Senate bill holds to the old practice of the two Houses adhering to 

their character as organized bodies. The Eaton bill, if I may so call 

it, provides that the members of the two Houses shall meet in "joint 

con-.ention," all Senators and members to "ha-.e ·equal power, influence, and voice, and all to vote per capita on all questions arising.'' 

This bill also allows any three members of the joint convention to bring 

in question any of the State electors. The Senate bill also provides 

that in cases of rival returns or of votes objected to by at least one Senator and one member of the House, when no final decision has been 

made by the State tribunals, then in such cases only those votes shall 

be counted which the two Houses acting separately shall concurrently 

approve. 

The Senate bill was this year introduced by a distinguished Senator 

from 1\Iassach'usetts, and is to some extent the work of a distinguished 

Senator from Vermont. . It is doubtless the resulting product of many 

minds, acting in one manner and another for a long period of years 

upon the questions of the electoral count. 

I have a few words to say as to the constitutionality of this Eaton 

bill. In commenting upon the Senate bill the gentleman from Connecticut characterized it as unconstitutional. Now let us look for a moment at the bill that he presents as a substitute. 

The Constitution provides that the ''President of the Senate shall, 

in the presence of the Senate and House of Representatives, open all 

the certificates and the vote shall then be counted.'' Tlie Eaton bill provides that the certificates shall be opened in. a body composed of the 

members of the Senate and House of Representatives as a joint convention. The certificates are not opened in the presence of the Senate 

or of the House as such, either or both, but before the joint convention. 

Th&t body hears the reading of the certificates and the papers as a joint 

convention, and it hears the announcement of the state of the vote as 

a joint convention. 

The objectors object not as Senators or Representatives but as members of the joint convention, and the members ofthatjoint con-.ention 

vote per capita to determine questions that may arise. Therefore this 

scheme, instead of pursuing the course authorized by the Constitution 

for the opening and counting of the votes before the Senate and Hous& 

of Representa1i ves, nullifies the language and the spirit of the Constitution entirely, and provides for an unconstitutional body. 

I now go a step further, and call attention to some of the practical objections which exist to the bill offered as a substitute. First, astothe 

joint convention. In addition to what has been said bythe gentleman 

who preceded me [Ur. HART]-andipresumethati hallrepeatsomewhat of his argument-this tribunal is unknown to our Constitution 

and has been to this day unknown to our laws. I am aware that there 

crops out occasionally a word or a sentence in reference to such a body 

in the discussions had upon this interesting question of the electoral 

count which h~ve taken placeheretofore and equal volumes in amount. 

There have been suggestions on the p1rt of some men of the possibility 

of a joint convention or a mass convention or a grand board or a grand 

committee or something of that kind; but to our Constitution and laws 

the thing is new. 

This substitute seeks to create a new consolidated body with judicial 

powers, and comprised of the members of both Houses, members with 

equal undivided legal capacity, acting not as Senators or as Representatives or as legislators even, but as members of a kind of general court; in 

short, I mightcharacterizeit, withoutwishingtothrowodium upon it, as an electoral commission of four hundred and one members. No oath is 

prescribed to be taken by the members of this joint convention. It may 

be claim~ that its members are already acting under oath. So they 

are when they are actjng as members -of the two Houses to which they 

were respectively elected. So also were the members ofthe body known 

as the Electoral Commission. They were all, when acting in their separate capacities, acting under the oath of their respective offices. But 

in that Electoral Commission they were required to take a new oath 

prescribed. Under the theory of the Senate bill no new oath is required, 

but the Houses act as such and such only. 

Under this Eaton bill the use of the phrase '' President of the Senate" is merely a fictitious use, to comply with the letter of the Constitution, and to show that the act of the presiding officer of the joint 

convention is not in any wise regarded as the act of the President of the 

Senate. By this 9ill the presiding officer at one moment is the President of the Senate, and I suppo~~~e as such he opens the certificates. 

The next moment he is the presiding officer of the joint convention. 

At the one moment he acts as the President of the Senate in a body in 

which there is no Senate, and then he lapses again into the presiding 

officer of a convention of four hundred and one members. 

Again, I think it is not well that objections to any of the votes should 

be made by members of the joint convention as such; for all of the objectors to any vote may be members of one House only. It would 

seem more fit that the objectors should act in their distinct andrespective capacities as members of the Houses to which they belong, and 

under the oath whic.:h they have solemnly taken when they became 

members of those Houses respectively. 

The Senate bill provides for an objection to a vote as well as an objection to a return. The Eaton bill provides for an objection to areturn only, as I understand its intent. -

The joint convention is not a meeting of the two Houses as such, and 

the objectors object not as Senators or Representatives, but only as 

members of that joint convention. The voting per capita contradicts 

two manifest ideas of 1he Constitution, ' one of which provides that the 

counting shall be in the presence of the two Houses, and the other that 

in case of failure to elect, the President shall be chosen by the House 

of Representatives, voting by States. The voting per capita is against 

the logic and the analogy of these two provisions. They Tote neither 

as members of the House n6r by States, but as members of a joint 

convention per capita, and the majority of this convention deci.des the 

result; and this body, not authorized nor recognized by the Constitution 

or by precedent, is to have the power to object to the votes of States 

and to annul them, and to decide valid or invalid the returns of the 

States, and to change at will the great current of the administrational 

and political life of fifty-five millions of people. 

By the theory of the Constitution the House of Representatives represents the people; the Senate represents the States. The theory of 

this bill up ets these distinctions, mingles the members of the bodies 

as individuals, confuses them as to representative position, and destroys 

the influence of the Houses llpen each other and the wise balancing 

·of power between them. 

Now, a word as to the State rights involved in this question. I would 

not presume ordinarily to comment upon the State-rights doctrines 

of the gentleman from Connecticut. I believe they are well known,. 

and he has not been indistinct in expressing them. But it seems to 

me that the exigencies 9f this bill, the pressure of the past, and perhaps 

the demands of the future have carried him from his standing along. 

with the strong current in which he finds himself, and that he is not 

in connection 'jith the provisions of this bill the State-rights statesman that I have heretofore understood him to be. 

The right of each State to appoint its electors is unquestioned. It 

is unchangeably fixed in the Constitution. Article IT, section 1, provides that ''each State shall appoint, in such manner as the Legislature 

thereof may direct, a number of electors equal to the wbole number of 

Senators and Representatives to which the State maybe entitled in the 

•Congress. '' 

Now, the State is moce than its voters; it is more than its Legislature, 

more than its judiciary, more than its executive officers. It includes 

them all. Now, I ask for a moment a consideration of the criticism 

made by the gentleman from Connecticut upon th.e Senate bill. He 

says that the second section of the Senate bill provides, as he understands it, that if there is a judicial decision in the State from which the 

appointment comes, that decision, although it may be tainted by fraud, 

and the outgrowth of corruption, yet being a judicial decision must 

.under that bill be absolutely final; that there can be no escape from i~, 

although it may be rotten with fraud. 

Now, I do not understand that section to so provide. It provides 

for the exhausting of all the machinery and power of the State, if necessary, to prevent fraud and to ascertain the actual vote ~f the Stat6, 

not only by judicial decision, but, if need be, by the action not o&].y of 

the judiciary, but of the Legislature, of the executive officers- the go~ 

ernor, comptroller, and other officers constituting the State board. It 

comprehends the whole. Under this bill the State has the power to so 

guard and hedge about the selection, appointment, and final designation of these electors that the result will be the nearest just and right 

that we can ever hope to obtain, considering that the affairs of the Government are dependent upon the acts of men. The State doe3 not m:-

haust its appointive power until it has used all these powers. The 

claim that the proceeding contemplated by this bill is interference by 

Congress with the right of the State is one of the allegations of the 

gentleman from Connecticut. But the charge is unfounded. The ac- tion of Congress under thj.s section is the securing of the right of the 

State to perform its own work in its own way under the Constitution. 

It follows in effect the precedents which have been set in the counting 

of the electoral votes for nearly a hundred years-that the count should 

be made before the Houses, but that the rig~ts of the States shall be 

respected, and the State's right to appoint fully recognized. 

The gentleman's argument that this measure is an interference with 

State rights places him entirely upon the wrong side in the construction of this bill. The bill is an expression of the respect that the natiOIIill 

holds for the rights of the States. 

While I am in favor of liberal construction as to national powers, and 

in favor of making stronger instead of weaker the National Government, 

-
5460 CONGRESSIONAL RECORD- HOUSE. JUNE 21,_ 

while I r~a-ard with abhorrence the theory of those who seek to disintegrate the nation and aggrandize the States, yet I consider it my duty 

to oppose by every means in my power this scheme which grasps the 

electoral Tights of every State, however solemnly determined by the 

State, and subjects them upon the act of thTee members of a House to 

a majority \Ote that may, in spite of every care and safeguard, declare 

void the action of the electors and disfranchise the State. 

Now, a few words as to the position taken in this debate by the gentleman from Alabama [Mr. PRYOR]. That gentleman insists that 

upon the. opening of the certif\cates the Houses disappear and are merged into a "primary body," a "board of inspectors and determinants," of which he says: 

I r epeat and now insist that in this word vote is included the ascertainment 

and determination of all defects, irregularities, illegalities, non-qualifications of 

electors or persons voted for, frauds, corruptions, or coercions, from the suffra- gan through it tran it to this Federal board of inspectors, r evisers, and determinants of last r esort at the seat of the Government of the United States. This Federal board a-ssembled and organized for the purpose, and charged with 

the duties thus imposed by my interpretation of the Constitution, proceed to discharge the same. . To do this, among other things, the twelfth amendment provides, as I con- tend, a high and select board of inspectors, revisers, and determinants, and 

charges them with the duty of ascertaining and counting the votes cast by the 

people of the everal States, through the instrumentalities of the Constitution. 

* * * * * * * The claim of the elector must be not only based upon but the legitimate prod- uct of a legitimate vote, to determine which is the business of this Federal 

board. 

* * * 8 * * * This Federal board of determinants of la t resort have a right to explore the 

whole voting area from center to circumference and from top to bottom. 

* * * * * * * This board, having the inherent right of self-organization, secures to itself 

the right to select and appoint its own officers and establi hits own rules of pro- cedure; and such being true, we are relieved of one of the disputed questions 

in the past, namely, that the President of the Senate, by right and force of his 

legislative office, and as such officer, has the right to be the presiding officer 

of this board or select body of men as inspectors and determinants of the Pres- idential count. 

The Constitution says: 

The President of the Senate shall, in the presence of the Senate and House of 

Representatives, open all the certificates and the votes shall then be counted. 

By what·authority do the Senate and House lose their constitutionally pecified characters? When do the two bodies cease as such ? At 

what point do they become a board? Where does the Constitution 

pulverize the two Houses into units, and then consolidate the units 

into '' a board,'' ''a special board, 1

' this '' Federal board,'' this ''high 

select board?'' · What right have we to say that the framers of the Constitution, when 

they said ''the Senate and House of Representatives," intended a 

''special board,'' discarding the President of the Senate, selecting its 

own officers, and establishing its own rules? 

This Eaton bill as it comes before us assumes ·and adopts this doctrine; proceeds to enact into law this Federal boa,rd of inspectors that" 

may investigate from center to circumference, from top to bottom; that 

can go back to the individual voter casting a vote in the State of Maine, 

Louisiana, or Oregon; can test the validity of that vot.e as originally 

cast; can extend such examination through every election district in 

the whole United States, and a-ct all the time as the joint convention 

that is to be created here out of the membership of the two Houses to 

canvass, to count, to investigate, and to explore. I feel at liberty to 

commend to tho e who are in favor of this bill the prospect which is 

placed before· them of the labors, the enjoyments, and the successes 

which they may obtain under its far-reaching powers. 

Now, Mr. Speaker, no one for a moment supposes that a great party 

legislating for the whole country and for the future upon a subject of 

vast and vital importance would seek or would willingly receive a partisan benefit as a result of such legislation. 

Therefore I can with propriety illustrate a possible effect of the proposed law by applying it to the present political situation in Congress. 

AN ILLUSTRATION. 

Not as a necessary part of the argument on this question, and without 

any intent to seek or oppose any partisan influence, I present the following figures as illustrative, and perhaps as suggestive, as to where "the 

dead-point" of the motion of the political balance-wheel may sometime 

befound: Present number of States, 38; number of Representatives, 325; 

number of Senators, 76; wholenumberof electors, 401. Present House 

of' Representatives voting by States, Democratic, 22; present House of 

Representatives voting by States, Republican, 14; Readj uster (Virginia), 

1; divided (Florida), 1; total, 38. · 

THE TWO HOUSES IN JOINT CONVENTIO~. 

Democratic Senators, 36; Representatives, 196; total, 232. RepublicanSena,tors, 38; Representatives, 116; total,154. All other Senators, 

2; Representative , 13; total, 15. Total Senators, 76; total Representatives, 3'25-; grand total; 401. Present Democratic majority on a party 

vote in a joint convention, and dividing the scattering as "8 to 7," 77. 

Unascertained preferences of scattering voters and the results of the 

still existing travail of the Committee on Elections may somewhat 

change the figures, but the fact will remain that in determining the 

preliminary and collateral and other questions of the counting of the 

electoral votes of 1884 the Democrats would have a majority of about 

77 votes, and in case no person receives a majority of" the whole number of electors appointed,' the House choosing from the three highest 

candidates and voting by States as provided by the· Constitution, the 

Democrats will have a party majority of probably 7 (votes) tates. 

Under the plan of the Constitution the two Houses take part in the 

proceedings of the electoral . count. The almost uniform precedents 

of nearly one hundred year8 imply the presence, action, and co-operation of both Houses as such. Even in the Electoral Commission both 

Houses were equally represented. And it seems rash, Tevolutionary, 

and dangerous to seek now to place the whole power of the determination of the counting, the canvass and the national result in the power 

of one House of Congress, the House of Repr entatives. 

Under this propo ed Eaton bill how readily might the members of 

this Honse create the occasion for an election of the President by this 

HouseofRepresentatives. First, threemembersmayobjecttothecounting of the votes of any State, or of any number of States; second, the 

question of their admission or rejection is decided by a per capit:'l> vote, 

the Hou e furnishing a Democratic majority of at least 77; third, as a 

result, the power of choosing a Democratic Pre ident either by the' 'joint 

eonventiori" or by the House is thus made perfect and ab olute. 

Suppose the 36 votes of the State of New York to be challenged by 

thTee Representatives elected in distant States upon local issues in 1882. 

Under this Eaton bill the House alone could disfranchise the State or 

admit contesting votes, although the judgment of the Senate should be 

unanimously against such action. 

The very existence of this bill is a threat against the national peace. 

Sir, suppo e a political party existed that was enraged by ita belief that 

it had been some time wronged by its antagonist. Suppo e its war-cry 

for a campaign to be for vindication and retribution. Suppose its very 

candidate to be the representative of the spirit of revenge grown morbid with the brooding of years. Suppose the mighty movements of this 

politicaJ. army of millions to be stimulated by a desire for victory and 

retaliation. After a closely drawn battle, without overwhelming defeat, 

how readily, with the heat of such a struggle still inspiring it, could 

it turn from the " trial by suffrage" to success under the devices of 

legislation. 

I am not here to criticise the Democratic party as such or to speak of 

it in any sense different from what might be spoken of the Republican 

party if it occupied a similar position . • I refer only to the political demand ma-de. upon party men and the dangers to which politicians and 

parties and the country may be immediately and permanently exposed under the provisions of this Eaton bill. • 

In conclusion, I have but few words to add: 

For more than eighty years efforts have been made from time to 

time, by propositions to amend the Constitution and by propo edenactments, to secure the country against the acknowledged dangers which 

have surrounded the proceedings of the electoral count. 

I am fully convinced that the Senate bill now before us is the wisest 

and most perfect measure at present a~able. 

With the completion of the approaching Presidential term we shall 

round out a full period of one hundred. years of Presidential constitutional Government. We approach the la...'lt electoral count of the :first 

century of our constitutionAJ. existence; we are a reunited people, 

strong, prosperous, and at peace. . But we are even now anxiously looking over the :field of a pending 

political conflict which may arouse much of the fierceness of human 

nature and excite much of the bitterness of political strife. We are 

responsible to the American people and to the Ruler of all peoples for 

the exertion of every power possessed by us to guard our country and 

mankind against the catastrophe which might follow a disagreement 

in the count, a disputed succession, and factional strife. 

In my judgment it is the duty of this House to concur with the Senate in the method of procedure it has proposed. It is wi e and just, 

the result of the consideration of years. It can be immediately crystallized into law, and thus before the supreme hour of decision arrives 

we shall exclude all elements of danger. 

ltfr. SPRINGER. Mr. Speaker, it is a source of regret that a bill of 

such importance as the one now before us should be considered at a 

time when so few members are present in their seats. There is no 

measure, sir, pending in Congress at the present session that involv~s 

questions of such vital importance to the welfare and peace of this 

country as the bill to provide the manner of counting the electoral votes 

for President ·and Vice-President. The committee in this House appointed for the purpo e of considering matters of this kind has ~efully 

prepared a bill, which is now before us, in the nature of a subs~tute for 

a similar bill which passed the Senate. The question for thiS House 

to consider now is whether you will take the bill recommended by the 

House Committee as a substitute for the Senate bill or adopt the Senate bill itself. 

If this House should determine not to a-dopt the system proposed by 

the House committee for a joint convention, I should hope that there 

would be some amendment made to the Senate bill before that bill 

should be passed by this Ho~. I refer particularly to the necessity for 

amendments to the second section of the bill, and to this section I ask 

the careful attention of the members present for a few moments. I 

think if you will understand this second section properly there will be 
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1884. CONGRESSIONAL RECORD-HOUSEo 5461 

few members of this House who would desire its enactment into a law. 

It provides-and I will read the text of the section, because it has be·en 

so carefully worded that its meaning could not be correctly given unless 

you heard the very language of the proposed statute itself-it provides as follows: 

SEc. 2. That each State may, pursuant to its laws existing on the day fixed for 

the appointment of the electors, try and determine, at least six days before the 

time fixed for the meeting of the electors, any controversy concerning their ap- pointment or the appointment of any of them. Every such determination made 

pursuant to such law so existing on said day, and made at least six days prior to the said time of meeting of the electors, shall be conclusive evidence of the 

lawful title to office of the electors who shall have been so determined to have 

been appointed, and shall govern in the counting of the electoral votes as pro- vided in the Constitution and a-s..hereinafter regulated. 

Now, what is the purport of this section? 

Each State may * * * try and determine. 

Here would arise, as suggested by the argument of the gentleman 

from New York, the great unsettled problem of what constitutes a 

State. It means that eachStatemay try and determine in the manner 

which its laws then existing hn.ve pointed out. Therefore that tribunal 

or t.hat proceeding which the statute of the State had theretofore fixed 

for the determination of the question is to settle it. Hence a State may 

be dwarfed in to the insignificant proportions of a returning board, or if 

you want to go further and get your tribunal still lower, you may come 

down to the functions.of a judge of a district or a circuit or county 

court or even of a justice of the peace, as a mode of settling the disputed question. 

Mr. HISCOCK. Let me ask the gentleman a question, and it is 

~his: Do you suppo e there is anything further meant by that provision 

'than this: That in the first place the election of the electors is to be 

certified to by the regular canvassing board; second, if there is a question as to who is elected, that that question may be tried in the tribunals of the State as any other questions relating to the election of 

officers in the State are tried? Tribunals are established in the States 

for trying such cases, and the only effect of this is that their decision 

is binding upon Congress. 

Mr. SPRINGER. It means precisely this: The State may by tatute 

enacted before the day of election fix any tribunal that within its 

judgment it ma.y be deemed necessary to decide any controversy concerning the appointment of the electors, or any one of them; and when 

that tribunal, whatever it may be, sh:ill have settled that question 

within a certain period before the meeting of the electors, that result 

is final and conclusive upon Congress, and the electors decided by that 

tribunal to be legally appointed must be counted by the House and the 

Senate. That is what it means. It means that just such a returning 

board as there was in Louisiana in 1 76, which was the means provided 

under the laws of Louisiana to determine -who were legal electors, shall 

be final and conclusive UJ?On Congress. It mean just such a body as 

that provided by the laws of Florida in 1876, known as the Florida 

returning roard, whose acts in this respect shall be final and conclusive 

up0n Congress. 

Mr. HEWITT, of Alabama. Does not the State authority itself determine by law as to what are legal proceedings in reference to ascertaining the results of an election, and is not that final? 

1\Ir. SPRINGER. There are of course uch tribunals in the States. 

But at that time there wa a proceeding in the courts of that State 

which set aside the determination of a returning board. But that was 

aliunde and went for nothing, especially when it came to seating the man who was elected. 

Mr. HEWITT, of .Alabama. If this bill had been in force at that 

time would not that decision have been conclusive upon Congre ; and 

would we not have been compelled to count the vote of Florida for 

Tilden? 

:Mr. SPRh~GER. It would depend upon the fact as to whether the 

State had provided that manner of determininO' this fact. The judges 

in the Florida case acted under the general jurisdiction of that State 

over the officers of the State, and there was no special authority to pass 

upon the election and qualification of electors of President and VicePresident. But in this bill it is presumed that the State would act 

upon this ve1·y question and point out a manner in which that question 

should be determined. And it is provided here that when that con- troversy has been settled by that tribunal there i no power in the Constitution or in Congress to challenge that judgment or decision. 

Gentlemen have said something about State rights. It seems to me 

that that is carrying State rights further than has ever been suggested 

by at least any political party in tb.is country heretofore. It is carrying it to the extent of saying that the judgment of a circuit court, or of 

the judge of a circuit court or of a district court if be were the tribunal provided, or of a retuTning board con isting of three or five, a.s 

the case may be, no matter how corruptly they mfl,y have acted or how 

illegal or unwarrantable their decision may have been or how outrageous it may have been, so far as the voiceofthepeopleofthat State 

is concemed. Yet we must stand still and receive it, because it was decided in the manner pointed out by that tribunal. ·I do not understand that any State in this Union in voting for a President or VicePresident can insist upo.q that vote being c<mnted by Congress against 

the voice of the people of the State and a,aainst the popular judgment 

• 

of the country. But I understand that the Constitution has given the 

power to count these votes to the Coijgress of the United States. 

Mr. BROWNE, of Indiana. ·I would like to know where? 

Mr. SPRINGER. I will tell you right now. The amendment to 

the Constitution provides that the electoral votes shall be forwarded to 

the President of the Senate, andThe President of the Senate shall, in the presence of the Senate and House of 

Representatives, open all the certificates and the votes shall then be counted. 

Shall then be counted. There; right then and there. This bill says 

they shall be counted by a returning board that may ·have met six days 

before the electors met in the State, and that that count is finaL But 

the Constitution says that "the votes shall then be counted." 

1\Ir. BROWNE, of Indiana. By whom? 

Ur. SPRINGER. That is what I am coming to. There is no place 

in the Constitution where the manner in which this count shall be made 

is pointed out. But there is a provision in the Constitution, which I 

have read, that. the vote shall then be counted. Now, thi is no implied 

power. We are not to look around in the dark places of the Constitution to find a power to count these votes. It says expressly '' the votes 

shall then be counted.'' 

Now let us look at the other provisions of the Constitution. I concede the fact that the manner in which this count shall take place is 

not mentioned in the Constitution. Now here is it provided. And hence 

the Electoral Commission was appointed for the purpose of counting 

these votes in 1877. · 

Mr. BROWNE, of Indiana. If the gentleman will indulge me a 

moment---

Ur. SPRINGER. I am just now making a statement which I desire 

to complete; and I will yield to the gentleman in a moment. I remember distinctly, Mr. Speaker, when the Electoral Commission bill 

was before this House one of the most distinguished law.yers then upon 

the floor, now a Senator from the State of Mississippi [Mr. LAMAR], 

standing where my friend from Indiana [Mr. BROWNE] is now standing, made his a.rgument in favor of the constitutionality of the bill reported by the joint committee, at that time known as the Electoral Commission bill-and that argument applies to the bill reported by this 

committee as well-because the Constitution left the q_uestion of provicling the manner in which the votes should be counted to Congress. 

There is a clau e in the Constitution which gives the Congress that 

power. I refer to the eighteenth clause of ection 8 of article 1 of the 

Constitution. 

Congress ball have the power to make all laws which shall be nece sary and proper for carrying into execution the foregoing powers, and all other powers ve ted by this Constitution in the Government of the United States, or in any Department or office thereof. 

Now, when the fathers made the Constitution they assumed that 

many questions would arise hereafter under it which they had not 

covered, and perhaps they did not intend, and I assume they did not 

intend, to cover all of them. It was a declaration of general principles. 

The manner in which the votes for President and Vice-Pre ident shall 

be counted is one of the things they did not determine. But they did 

say that ' the vote shall then be couuted. '' How? :ijy the Clerk of .the Senate ? By the President o( the Senate? By the Doorkeeper? 

By the Sergeant-at-Arms? By an experienced accountant who might 

be brought in for that purpo e? By a committee of the two Houses, 

or by both Houses a{;ting concurrently or in joint convention? It is 

not pointed out how the count shall be made. 

But if Congress can legislate upon this ubject in any way and provide the manner in which this count shall be made, it can provide such 

manner as in its judgment will be most effective to carry out the intention of the Constitution, which was to have the votes counted. This 

bill proposes to do that; and in either event-whether the Senate bill 

or the Hou e bill be adopted-provides the mode. I do not know but 

it is competent to pass both these bills, so far as the constitutional power 

is concemed, except the second section of the Senate bill, which would, 

if passed into a law, deprive the Congress of the power which I believe 

was given to it to provide a mode in which this count should be made. 

If Congress may make all laws which are necessary to carry into 

effect the powers granted by the Constitution, it may make such laws 

as it may deem necessary to carry out that express provision of tlie 

Constitution, to count the votes for President and Vice-President. How 

shall we provide that? That is a question addressed simply to the 

sound discretion of members of this House and of the Senate as lawmakers. 

The honorable gentleman from Ohio [ fr. HART] and the honorable 

gentleman from New York [:Mr. PARKER] have suggested that this 

joint convention will be partisan, and that it will carry out the will of 

the majority of the members of the joint convention and noli the will 

of the voters at the polls. They therefore distrust this body, consisting 

of four hundred and one members, as partisan and unreliable. · 

I am ready to concede that Congress is not infallible. I am satisfied 

that it has made a great many judgments and decisions in matters pertaining to elections which were partisan, and which ought not to ba'e 

been made. But the question before us is: What kind of a body would 

most nearly represent the people of the United States and insure the 

most just and righteous decision upon a great question of this kind? 

r 
- ---- - ~ - -~ -- .. 

5462 CONGRESSIONAL RECORD- HOUSE. JUNE 21, 

Mr. AD.AJ\18, of illinois. I wish before the gentleman passes from 

what he stated a few moments ago to be a defect in the Senate bill, to 

wit, that it provides a State tribunal for det-ermining this question-

! wish he would state whether in his opinion it would be dangerous 

9r against the public policy to allow any State tribunal to have anything whatever to do with this question? I would remind him that 

~ his argument he mainly dealt with the liability of the State to make 

an inferior or improper tribunal. 

Mr. SPRINGER. The gentleman did not get my point in reference 

to that econd section of the enate bill. I do not object to the State 

providing the manner in which the count shall be taken. What I objected to was this clause: 

Every such determination made pursuant to such law so existing on said day, 

and made at lea-st six days prior to the said time of meeting of the elector , shall 

be conclu ive evidence of the lawful title to office of the electors who shall have 

been so determined to have been appointed, and shall govern in the counting of 

the electoral votes, as provided by the Constitution and as hereinafter regulated. 

I object to that provision of the bill which requires Congress to abdicate its powers, which provides that a returning board of three men 

in Colorado or five or six men in Louisiana shall finally and forever 

control and settle the question as to who were chosen electors, when 

in my judgment Congress has the final power to count the votes. 

Mr. HERBERT. Has the gentleman observed that the fourth section of the Senate bill gives to both Houses of Congress acting concurrently the power to overrule the decision of the State tribunal? 

ir. PRINGER. I have not. observed that, and I will call my 

friend attention to the fact that he has not observed it. If the gentleman will look at that section he will find that when we come to the 

question of the disputed vote it is to be counted in aecordance with the 

judgment of the State tribunal, if there was one. Mr. HERBERT. Let me read from that section, beginning with line 

31 near the bottom of page 3 of the bill: 

'Vhen all objections so made to any vote or paper from a State shall have been 

received and read the Senate shall thereupon withdraw, and such objections 

shall be submitted to the Senate for its decision; and the Speaker of the House of Representatives shall, in like manner, submit such objections to the House of Representa.ti ves for its decision; and no electoral vote or votes from any State 

from which but one return has been received shall be rejected except by the 

affirmative vote of both Housee. 

Mr. SPRINGER. Then there is a provision of the section in relation to a case where more than one return or paper purporting to be a 

return from a State shall be received by the President of th'e Senate. 

The SPEAKER p1·o tempore (Mr. Cox, of New York). The twenty 

minutes yielded to the gentleman from illinois [Mr. SPRINGER] has 

expired. 

l\1r. SPRINGER. I did not know that I was limited to that time. 

l\1r. EATON. I ought to say that, according to the rule which ~as 

been adopted on both sides, my friend from illinois [ll1r. SPR~GER], 

as a member of the coJllillllttee, would be entitled to an hour. He said 

he would not want over fifteen minutes and I gave him twenty. 

Mr. SPRINGER. I thank the gentleman from Connecticut [Mr. 

EATON.]. I will show my friend from Alaballli<t [Mr. HERBERT] that 

he is mistaken. If he will read further on in that section to which he 

has referred h will find this provision: 

If more than one return or paper purporting to be a return from a State shal~ 

have been received by the President of the Senate, those votes, and those only, 

shall be counted which hall have been regularly given by the electors who are shown by the evidence mentioned in section 2 of this act to have been ap- po.inted, if the determination in said section provided for shall have been made; 

but in case there shall ari e the question which of two or more of such State tribunals determining what ewctors have been appointed, as mentioned in section 2 of this act, is ~he lawful tribunal of such State, the votes regularly given of 

those electors, and those only, of such ~tate shall be counted whose title as elect- ocs the two Houses, acting separately, shall concurrently decide is supported 

by the decision of the tribunal of such State so authorized by its laws. 

So that if a State tribunal has determined the question the decision 

of Congress i:s referred back to that decision of the Stat-e tribunal which 

is made binding on the two Houses. 

To proceed nowwith the argument I wasabout to make when interrupted by my colleague from Illinois [111r. ADAMS]. Is it safer to trust a joint convention of the two Houses, consisting of four hundred and one members, on a great national question of this kind, rather than to 

trust the decision of any returning board, or court, or commission that 

may be provided in any of the States of this Union? Let us look at 

the facts for a moment. 

In 1 76 it was understood two days after the election that if l\fr. 

Hayes was elected President it was by but 1 majority of the eleOComl 

college, and that in order to get that 1 majority he must have all 

the votes of Louisiana, Florida, and South Carolina, which were contested. Now, suppose there had been a little Democr:atic State in the 

North-Oregon, for instance-and that this bill with its section 2 was 

the law. When it was disco\ered that the Republicans were going to 

count the votes of Lauisiana, Florida, and South Carolina for their ca,n- didate, wquld not such a State call in1o requisition its little tribunal 

for the purpose of reversing the judgment of that State? It will be 

evident that there would be a race run immediately among the States, 

and e pecially the small States that had but few votes, where there- turning board m:t.s easily manipulated, to register, or, in other words, 

to set aside, the voice of the people at the polls, and to procure a j udgment of the electoral college against the voice of the people. 

l\fr. ADAMS, of Illinois. Is it not your idea that in such a case the 

race would be between the doubtful States in creating the tribunal? 

Mr. SPRINGER. The tribunal must have been created beforehand. 

Mr. ADAMS, of illinois. I thought you overlooked that. 

Mr. SPRINGER. No; I have stated frequently that this tribunal 

must have been in existence beforehand. 

Now, Mr. Speaker, I wish to know whether gentlemen here would in 

that case be willing to leave to the decision of one man, who might be 

a purchasable man and who e price might have been fixed and paid in 

dollars and cents, the determination of the great question who wa 

elected President of the United States. Shall werestthequestion upon 

so slender a thread, or will you in the case of a disputed election appeal 

to therepresentati>es of the people and the representatives of the States, 

and a k them to settle it, and in this tribunal make every member of 

either House the equal of every other, and place him upon his individual 

responsibility before his constituents? 

l\Ir. Speaker, under our form of government this House and the 

Senate-the Representatives here on this floor and the Senators in the 

other Chamber- are the people of the United States in their representative capacity. If you can not trust them in this representative capacity under the Constitution to decide a great question like this, to 

what body shall we go for relief? Where can we find in all our judicial, 

legislative, or executi\e system a body which when it has spoken will 

give so great satisfaction to the people in deciding a great question like 

this as will the Senate and the House of Representatives or the members 

of the Senate and the members of the House of Representatives? 

I concede that we may act as partisans. I concede that we may err. 

I concede that we may commit a gre.<tt outrage, as has been done in 

the past. But is it not better that this body and the Senate should err 

than that we should submit to the >enal and the purchased decision of 

a small tribunal in a little State of the Union? 

1\ir. Speaker, I desire that in the selection of a President of the United 

States the voice of the people, whatever it may be, shall be respected. 

I.desire that this voice shall be made effectual throughout the length 

and breadth of the land. And I know of no tribunal under our form 

of government that is more directly responsible to the people than are 

this body and the Senate. I know of no machinery which can be invented by the ingenuity of mankind whose judgment will be more 

likely to receive the acquiescence of the people than ~uch a tribunal as 

this. 

And, after all, acquie cence is the important thing. It is more important there should be acquiescence than that there should be entire 

freedom from partisanship or that there should be an ab olutely correct 

judgment, because we have established a government which is intended 

to be perpetual, and history tea<;:hes us that mo t of the war~ in the pa t 

have grown out of the succession of the head of the go>ernment. And 

if there is one place in our Constitution which is weaker and more vulnerable than any other, it is the provision with regard to the selection 

of the Pre ident of the United States. 

Let us, therefore, as representatives of the people provide such machinery for securing this result that & judgment shall always be reached 

in the counting of the >otes for that high office, a judgment which 

shall be acquiesced in by all the people of this country. If this tribunal, consisting oftlt.e representatives of the people on this floor and the 

representatives of the States in the Senate, should determine in any case 

that any man was rightfully elected President of the United States, I 

believe every good citizen will immediately bow in t!eference to that 

decision. To this end, ]!Ir. Speaker, I commend this bill to the Representati>es of the people, and ask them to provide such machinery for 

the counting of these >otes and the rendering of thls judgment as will 

insure justice, fair dealing, an honest count, and the perpetuity of our 

institutions. 

1\fr. PETERS addressed the Chair. ~fr. EATON. I do not suppose that avotecan be obtained to-night 

on this bill, because so many members are absent, though I should like 

(if it were possible) to clo e the discussion to-night, move the previous 

question, and take a vote. But I do not expect that; and I want gentlemen to go on now and talk as long as they please. 

Mr. PARKER. One word as to the remark which the gentleman 

has just made. Therearesomegentlemen on this side-one or morefrom whom we wish to hear on this question. Circumstances are such 

that we can not do so to-night. There might, if the gentleman wishes, 

be some limitation fixed now as to the discussion in the future, but reserving half an hour, or perhaps an hour, to this side upon the day on 

which the vote is taken. I really think, from the interest I have seen 

exhibited, and from incidental remMks I have heard, that this question 

ought justly to have the attentionofthis House for another full legislative day. In this remark I am not speaking for myself. But there 

are many gentlemen who have given careful consideration to this subject, and from whom we are entitled to hear. I hope the gentleman 

will not ask that the debate be closed to-day. 

1\Ir. EATON. If this Congress is to adjourn by the 4th of July I 

greatly fear that we can not control another day for the discussion ot 

this great question. I am as anxious as my friend from New York or 

anybody else that there· should befulldebate. I desired myself to discuss the question further for half an hour or an hour. Every member 

• 

- -
1884. CONGRESSIONAL RECORD- · HOUSE. 5463 

knows that in opening the debate I sin:).ply stated points without elaborating them. But I am entirely willing to forego the making of any 

speech on this subject. :My object is that every member who desires 

may talk now, and that the previous question be called to-night. 

Ur. BLAND. Allow me a moment. We had gre::tt difficulty to-day 

to reach this bill, and in all probability unless the previous question is 

moved we will not reach it again this session. If gentlemen wish to 

pass this bill at all, the onlj way is to pass it now. It has been discussed in and out of Congress since 1876, and we are ready to vote on 

the various propositions presented here. Certainly there can be no desire on the part of any gentleman to defeat this bill for want of time. 

We would all like to see some bill .pass. It is uncertain whether we 

shall e:ver reach it again unless something is done in the way of moving the previous question. 

Mr. HART. I hope there will be no present limitation to debate. 

Let it go on a little further. 

:Mr. BLAND. Debate has defeated most of the legislation at this 

session. Every bill is talked to death. We have been talking all the 

time, and yet gentlemen are not satisfied. 

Mr. BROWNE, of Indiana. I hope we may be able to stand an hour 

or so yet this evening in discussion, and then I hope the demand for 

' the previous question will be made. Unless something of that kind 

is done it will be impossible to get a vote on this question dming this 

session of Congress. I would rather the worst bill the House could 

formulate should pass and go to the Senate and so go to conference than 

that none should pa..">S. 

:Mr. PETERS. Mr. Speaker, I labor under great disadvantage in 

addressing this House at so late an hour on Saturday evening, but perhaps I wlil receive as much attention to-night as I would have at any 

time during the session. Therefore I am perfectly willing to proceed. 

There are two plans suggested by the bills before the House, and I 

desire to call attention briefly to them. The one plan proposed by the 

Senate bill, commonly known as the Hoar bill, is the plan of concurre11.t 

action between the· two Houses or such action as preserves the autonomy 

of the two legislative bodies. 

I will remark in advance of any further statement in relation to the 

subject involved that the primary underlying subject is what body is 

to act as the judicial power tQ determine a mooted question when it is 

raised in connection with the counting of the electoral votes? It is not 

what body shall count the vote, because that is a mere physical act or 

mathematical calculation and involves no great amount of skill, becau e our electoral vote never ran up high in figures. .A. boy of 10 

who is familiar with the addition table could add up the electoral vote 

and do the counting. There is something deeper and more significant 

in the action that is required to be had by certain bodies than the mere 

counting of the vote, and that is to determine judicially what vote 

shall be counted when there shall be a dispute as to whether a vote 

shall be counted or not. 

And coming back to my original proposition, I say the great question presented by these two bills is whether the two legislati>e bodies 

shall count these Totes a~ting judicially as a Senate and House, or 

whether they shall count them as members of the two bodies, theSenate and House of Representatives. In other words, whether the Senate 

shall count or assist in the exercise of that judicial power as the Senate 

of the United States, or whether is shall a-ssist in the exercise of that 

judicial power as individual members of the Senate, and whether the 

House shall exercise that judicial,power in its oopacity as the House of 

Representatives, or whether the members of the House of Representatives shall exercise that judicial power as individual members. 

.A.s I said before, the Hoar bill contemplates the preservation of the 

autonomy o"r these two bodies. It contemplates the Senate shall take 

part in this judicial proce"ding as the Senate of the United States, and 

jt contemphtes tbe House of Representatives shall take part in this 

judicial proceeding as the House of Representatives of the United 

States, and their action must be concurrent on the question presented 

for their decision. 

Now, in opposition to the Hoar bill is the substitute reported by the 

majority of the committee of the House, namely, that the power that 

shall exercise these official functions is not the House of Representatives and the ~enate of the United States, but the members of the 

House of Representatives and the members of the Senate voting per 

capita, in order to decide the mooted questions that may come before 

them for adjudication. 

In order, Mr. Speaker, to ascertain the consliruction to be placed upon 

thl( Constitution it is necessary if possible tQ get at the intention of 

the framers in the preparation of that instrument. If that intent can 

be arrived at-the intent of the framers themselves-then I for one 

assert that I a.m willing to carry out that intentionregardlessofwhether 

the conclusion so reached shall be favorable to the party to which I 

belong or adverse to its interests. I have sufficient confidence in the 

wisdom and knowledge and integrity of the fathers and in the deliberations given to this subject by the framers of the Constitution to believe 

that if you can arrive at their intention we will have arrived at a con- clusion which will be for the best interests of the Government. 

We know that prior to and du.riH.g the Revolutionary war these now called States were independent and separate colonies. New York had 

no control over Georgia, had no interest in Georgia as a cohmy, exercised no power in Georgia a-s a colony; and it was not until they were brought face to face with a foreign foe, or with arms that they were 

forced to acknowledge the necessity of a union, not for a general government, but in order to have strength to meet the dangers that threatened. The idea of a general government did not preTail prior to the 

Revolutionary war to any great extent. 

It is tme that Benjamin Franklin at some time prior to the· ReTolu-· 

ti.onary war, and even after the very opening of the war, had spoken of 

the plan of a general government and the desirability of having such 

a Government. But it did not obtain throughout the colonies before 

the Revolutionary war or ·even during the war. The object of the Confederation during the Revolutionary war was simply for the purpose of 

forming a unity of strength and a power of resistance to throw off the 

yoke of Great Britain and relieve from its oppression. It was this oppression, as I said before, that disclosed t;Ae weakness of each separate 

part of the Confederation, and it was this oppression that begat the mutuality of feeling between the colonies, and naturally enough led to the 

idea so forcibly expressed in the language, ''In union there is strength.'' 

The Revolutionary war enfor~d this idea by creating throughout 

all of the colonies the prevalent feeling that if there was to be any 

maintenance of their rights upon this continent, that maintenance must 

be held and had by virtue of union among the colonies themselves; so 

that when, in :May, 1787, the convention met in Philadelphia, composed of representatives from all of these colonies except Rhode Island, 

they met with all these views ingrafted into their very natures. They 

met prepared to go into a general government, to organize a general 

system of government that should make them strong and yet at the 

same time be elastic enough to fulfill the great hopes and pl"Omises of 

future growth and prosperity. -

Coming, then, directly to the question of arriving at the intention of 

that convention, there are certain points about which there can be no 

difference of opinion. .A.ny person who has familiarized himself with 

the brief synopsis of the debates that took place in the convention will 

arrive readily at a conclusion as to the intention of the fram~s of the 

Constitution in regard to a great many matters about which there can 

be no diSpute; as, for instance, they were all agreed that it was necessary to have a head to this government. Every plan ,pf government 

that was propooed in that convention recognized the idea that there_ 

must be a head to this government, and also recognized the idea that 

that head should be a president; because they were opposed to a king, 

they were opposed to a queen; they had had enough oppression from 

kings and queens, and did not desire a government to be controlled by 

one individual. 

When they came to the manner of the election of this head, and when 

that question came to be discussed in the convention, it was then ascertained hat there were differences of opi)rion as to how the selection 

should be made. There were some that were in fuvor of having the 

President selected by a popular election, butthat this popular election 

should be confined to districts. Then there were others in favor of having the electors chosen by the States in proportion to their population. 

Then there were others in favor of having the President selected by the 

governors of the different States. There were others in favor of having primary electors chosen by the people; these primary electors to 

choose secondary electors, and these secondary electors to choose the 

President of the United States. 

Then there were some who were in fa-vor of choosing by a popular 

vote direct without the intervention of the district plan and without 

the intervention of the electoral plan. Then there were some, and 

these were in the majority, tha"fi were in favor of having the President 

elected by Congress; not by the House of Representatives, not by the 

Senate of the United States, not by the members of the Honse of Representatives, not by the members of the Senate of the United States, 

not by all of them combined, but by Congress. And I assert that an election by either branch of the Legislature or by the individual members of the Seuat0 or of the House was not even mooted or advanced 

in that convention until during the last two weeks of its sitting. I 

have said, and it is a historical fact, that a majority of that convention were in favor of the selection of a President by Congress. Why do I 

make that statement? .A.ny one who has taken these debates and run 

through them will discover that it was the most popular measure in 

that convention; and at one time ilhe proposition to select a President 

by Congress passed that convention unanimously, although it was 

afterward reconsidered; bnt I will refer to this subject more at length 

in the course of my remarks. 

I wish to call attention to certain paragraph connected with article 

2 of the Constitution. The second paragraph of section 1 of article 2 

of the Constitution says: 

Each State shall appointThere is the source of power. Who shall appoint?-

Each State shall appointHow shall they appoint?-

in such manner as the Legislature th~reofmay directHow many shall they appoint?-

a number of electors equal to the whole number of Senat-ors and Representa- tives to which the State may be entitled in the Congress. 

First, the power is in the State to select, and then there is the di-

.J 
5464 CONGRESSIONAL RECORD-HOUSE. JUNE 21, 

rection how they shall appoint or exercise this power. And there is a limitation upon the number. _ We come then to the original third paragraph of section 1. And 

right here I call the attention of the House to this fact, that so far as arriving at the int.ent of this convention upon the subject under discussion is concerned, article 12, which was afterwards adopted in 1804, 

affords no criterion by which to judge other than that which was afforded by the original paragraph; because so far as the subject-matter 

under discussion is concerned it made no change. Both the original 

paragraph and article 12 used the words ''and the vote shall then be ~ counted;" but the original paragraph goes " on to declare where these 

electors, after they have been selected by the appointingpower, namely, 

the States, shall meet. Not in the national halls; not in the House of 

Representatives; not in the room occupied by th~ House of Representatives; not in the room occupied by the Senate of the United States; nor even in the national Capitol. But theyShall meet in their respective States and voteHow?-

by ballotFor whom? For two personsfor President and Vice-President. 

What shall they do after they have voted? They shall make a list 

of all the persons voted for. They shall also state the number of votes 

that each person shall have received. They shall sign and certify that 

list and transmit it to the seat of the Government, direct.ed to the President of the Senate. Now, these are specific directions. And mark you, 

when gentleman say that there were only general matters presented in 

this paragraph or in the Constitution as a whole, they overlook the filet 

that in relation to these matters the convention went into detail and 

stated plainly and m'lambiguously just what these electors should do and 

where tbe power that created them should come from. 

Now, mark you, it says that this certified list should be sealed up and 

transmitted to the President of the Senate. Then, leaving out the immaterial matter of the paragraph that is not important to the discussion 

of the subject before us, we go on to the manner of choosing a President or the counting of this elect9ral vote: 

Tb,e President of the Senate shall, in the presence of the Senate and House of 

Representatives, open all the certificates and the votes shall then be counted. 

He shall not open only one set of certificates that may be transmitted 

to him by a. State, but he shall open all of the certificates. 

Mr. BROWNE, of Indiana. · Will the gentleman indulge me? Does 

the word "all " mean more tha.n that he shall open the certificate of 

each State? For instance, suppose hereceivesan authenticat.edcertificate from a State and he receives some other paper that purports to be 

a certificate, and upon examination he determines that one is the cer- tificate of the State and the other is not, does he present both papers 

to the two Houses? 

l'llr. PETERS. I think that he does. For this reason: that under 

the law the President of the Senate ·is simply the custodian of these 

papers. He has no judicial power in connection with them. I think 

that the position that the President of the Senate has any judicial 

power in relation to these papers is untenable. And for this reason: 

if our forefathers intended that the President of the Senate should 

exercise judicial power in determining what votes should be counted 

they would have made some other person the custodian-of those certificates between the time of the meeting of the electors and the counting of the electoral vote. And therefore I say that I believe the duty 

of the President of the Senate was to open all of the certificates that came into his possession and were placed in his hands as custodian of 

these certificates, regardless of whether there were two or more different certificates from any Sta,te. But that is a little diversion from the 

line of argument I had marked out. 

Mr. BROWNE, of Indiana. It is very important nevertheless. If I assume that he only lays before the two Hou&e.s the certificate of a State and that he must judicially determine, if necessary, which of two or more papers he may have is the certificate of the State, and that 

when :me has laid a paper before the two Houses there is no power iB. 

the Houses to compel him to lay before them any other paper but the 

one, then the act of counting is merely ministerial, and the two Houses 

have not anything to do in a judicial way. 

1\fr. PETERS. I can not agreewiththegentlema.nin regard to that, 

because I believe if the President of the Senate should fail to lay before 

the Senate and the House of Represent.'\tives all of the certificates he as the custodian had received, he could by law be compelled to do that 

duty, and this could not be done if he is authorized to exercise any 

judicial discretion. I do not think that he has any judicial power or 

discretion in the matter. His duties are purely ministerial. I believe 

that whe:pever he receives a paper from a State purporting to be a cer- tificate, which paper has been transmitted to him ·as required by law, 

that is sufficient to authorize him to lay ·that paper before the Senate 

and the House of Representatives, and as the custodian of such papers 

and as a ministerial officer he is required to do so, and can be compelled by law to do so in case of refusal. 

Mr. HISCOCK. I suppose that, as suggested by the gentleman from 

Indiana [Mr. BROWNE], this involves the whole question whether the 

President of the Senate makes the count, or whether he merely opens 

the certificate and some other body makes the count. 

:Ur. PETERS. I expect a little further on to take the position, 

which I firmly believe, as I have indicated and foreshadowed already 

in my remarks, that it is the Senate as a Senate and the House as a House ading concurrently that exercise the judicial power of determining what votes shall be counted. No.where in the Constitution is 

this duty expressly declared to be the duty of the President of the 

Senate; that is, the duty of exercising the judicial power as to what 

certificate shall be counted or as to the character of the certificates 

which he hall lay before the two Houses. 

I regret very much that under the agreement which has been made 

to order the previous question to-night I have not time to argue this 

question fully and in detail. But I will pass very rapidly and come to the main question of the case as I desire to argue it. 

What are the functions of Congress in this matter? There ate four 

important factors in the election of a President : First, the people ; 

second, the electors; third, the President of the Senate; and fourth, the 

Senate and the House ofRepresentatives. These are all the powers or factors that are authorized by the Constitution of the United States to 

have anything to do with the election of a President from the beginning to the end. 

After the electors have transmitted to the President of the Senate the 

certified copies of the votes, then their functions entirely cea e; they 

have nothing further to do. Then, as I have already said, the function 

of the President of the St>..nate begins as the custodian of those records, 

certificates, or returns. When the Senate and the House meet, then 

the President of the Senate has a further function to perform, namely, 

to open all of the certificates, not open them ecretly or privately in his 

office, but open them in the preserrce of the Senate and of the House of 

Representatives. 

Now, as to certain functions of these different factors there can be no dispute. The only question of difference between the two plans under consideration is brought right down to this: By whom shall these votes 

be counted? Not in the mere sense of figuring up; but, as I have before stated, bywhomshall thequestionastowhatvotesshall be counted 

be determined? As I have said, I do not believe that the President of 

the Senate has this power. I do not believe that the House of Representatives has this power, and I speak now of the House as contradistinguished from the Senate. I do not believe that the Senate has this 

power; I do not believe that the members of the House or of the Senate, or of both Houses, have this power. 

But 1: believe that the Senate and House of Representatives concur- rently have the power to determine what votes shall be count.ed, and I 

believe this for various reasons, which I shall endeavor briefly to give. 

First, because the idea of the election of a President by Congress was tbe popular idea in that convention. Upon this I have already touched. 

There seems to have been three plans of government proposed in the c )nvention-the Virginia plan, the Jersey plan, and the Pinckney plan. 

'fhe Virginia plan and the Jersey plan both agreed upon the election 

vf a President by Congress. 

A strong effort was made to change this: to have the President elected 

by a popular vote, and that failed. Next ther0 was a proposition presented to elect the President by electors, but that failed. The proposition to elect by Congress was at one time approved unanimously by· the convention, as I have heretofore stated. 

Then, on the 19th of July, 1787, that proposition was reconsidered, 

and the plan of choosing electors by the Legislatures of the States was adopted. Then, July 24, the proposition of choosing by electors was reconsidered and choice by Congress was again revived, and in that 

form the proposition went to the committee on details. It was favorably reported by the committee on details and was again recommitt.ed, 

and finally, within the last two weeks of the session of the conven- tion, the electoral system was agreed upon. This brief resume of oc- currences in that convention conclusively shows that the idea of electing the President by Congress was the popular idea in that convention 

and had the most adherents in that convention. 

It is claimed, and correctly, too, that this electoral system was the result of a compromise. I agree to that. It was the result of a com~ 

promise between these parties who had different beliefs in regard to 

the method by which th~ President should be elected. The idea. that 

the majority of a convention believing that the President should be 

elected by Congress should entirely a·bandon that plan and entirely sur- render it and adopt something eh;e is not in the nature of a compromise 

but in the nature of an entire surrender of their convictions. 

Second. I believe that the Senate and the House of Representatives 

should determine judicially what votes shall be counted, because the 

Constitution provides that the certificates must be opened and counted 

in the presence of the Senate and ofthe House of Representatives. Will 

any man tell me what objecttherewas in having the Senate and House 

of Representatives present when the certificates were opened, if it was not iutended that they should have some right to exercise judicial 

power upon any mooted question that might arise in the counting of 

that vote? 

I think the idea that the two Houses convene simply as witnesses is 

untenable. If that was the intention of the framers of the Constitu-
1884. CONGRESSIONAL RECORD-HOUSE. 5465 

tion, why did they say that these votes must be counted in the presence of the Senate and House of Representatives? Why did they not 

say that it should be done in the presence of the members of the Senate 

and the members of the House of Representatives? If that was the 

intention of the framers of the Constitution, if the members of the two 

Houses were to be convened simply as witnesses, it would naturally 

have been said that this opening and counting should be done in the 

presence of members of the Senate and members of the House of Rep- resentatives. An artificial body can not be a witness. The Senate of 

the United States is an artificial body; the HouseofRepresentativesis 

• an artificial body. Artificial bodies can not be witnesses to anything. 

It is the members of these organizations who are witnesses, if they are 

convened simply in that capacity. 

Mr. BROWNE, of Indiana. Will the gentleman allow me to answer the point he is just making? I agree with him that the two 

Houses aTe present in their organized capacity, not as individuals. I 

will agree also, for the sake of argument, that they are not present to 

count the votes. But the Constitution explains precisely'the objectof 

their presence; there is no question abqut it. The purpose is written 

just as plainly as the makers of the Constitution could write it. The 

House is present so that, if the count should disclose the fact that no 

person has been elected President, it may at once take notice of the fact 

and proceed in the manner pointed out by the Constitution to elect a 

President; and the Senate is present for the purpose of hearing the 

announcement of the result, and in the event a Vice-President is not 

elected according to the ~ethod pointed out in the Constitution that 

the Senate may at once proceed to the election of a Vice-President. 

That is the object of the presence of the two Houses. 

Mr. POLAND. Does the gentleman from Indiana claim that they 

have nothing to do with the count~ 

Mr. BROW:NE, of Indiana. I claim that the Constitution does not 

confer upon the two Houses, either separately or acting together, any 

power with regard to determining the question of the count. 

Mr. POLAND. Then, so far as the count is concerned, they are pre - ent as mere spectators ? · 

Mr. BROWNE, of Indiana. Simply to hear the result. 

Mr. WILSON, of Iowa. The gentleman from Kansas will allow me 

to say that no President, from George Washington down, has ever yet 

been inaugurated except in conformity with a concurrent resolution of 

both Houses of Congress. 

Mx. PETERS. I will come to a discussion of that matter a little 

further on if I have time. I think I have perhaps brought out plainly 

theideathatindividual membersofthe e bodies were not contemplated; 

that the framers of the Constitution had not in mind individuals but 

organized bodies; and it is these organized bodies that are by the Constitution to be assembled in the presence of the Pxesident of the Senate 

when these votes are counted. 

Now, a majority of the members of the Senate duly assembled in the 

place where by law the Senate assembles constitutes the Senate of the 

United States, and a majority of the members of the House of Representatives duly convened according to law in the place for the meeting 

of the House of Representatives constitutes the House of Representatives. Will any man claim that the members of the Senate could meet 

in the city of Topeka, Kans., every one of them being there and having 

with them the Secretary of the Senate and all their other officers-could 

meet in a room there and be the Senate of the United States? Will 

any one claim that if every member belonging to this House, with all 

the officers of the House, should meet in the city of Topeka, Kans., 

they would constitute or could legally be called the House of Representatives of the United States? I trow not. It requires the sanction 

of law as well as the presence of individuals to make an artificial body. 

It requires the sanction of law as well a$ the presence of members of 

the House of Repre entatives to constitute in fact and in law the House 

of Representatives. 

But I must consider for a momentthE>question whether the House of 

Representatives is the proper body to exercise this judicial power and 

count the vote. It is so claimed by some-among them I believe by the 

distinguished chairman of this committee [Mr. EATON], for whose opinions I have great reverence-that the House of Representatives is the 

body that should exercise the j ndicial power, if any is to be exercised, 

in the counting of this vote. Now, the only circumstance I can find 

in favor of that view is the fact that the House of Representatives in a 

certain contingen\!y is called upon to elect a President.. 

If I had tillle I might suggest a number of reasons for the action of 

the framers of our national Constitution in adopting this provision, but 

I have not the time. It must be borne in mind that our forefathers, 

with their unhealed scars mutely reminding them of the tyranny from 

which they had just escaped, were in no frame of mind to lodge any 

extraordinary power in any particular body or in any particular man; 

and this! it seems to me, is the strongest reason for concluding that this 

power was not intended to be lodged by them in the hands of one man, 

the President of the Senate, or in either branch of the national Legis- lature. 

Hotv remarkable it would be if they had lodged this power in the 

House of Repre enta.tives! Under this view the House of RepresentatiYes exercises in the first instance the right to pass upon a mooted 

question in regard to the count, and in case they pass upon this mooted 

question in such a manner as to defeat the will of the people they themselves pass at once from the position.of judges and become the electors 

to choose a President. In my opinion it is not reasonable to suppose 

that our forefathers, fresh as they were from scenes of oppress~on, ft·esh 

as they were from the battle- cars of the Revolution, contemplated any 

such idea as that. 

But the idea that was more consonant with their feeling, as well as 

the text of. the Constitution framed by them, was that the Senate and 

the House, the one acting separately from the other yet acting concurrently, the one being a balance and check on the other-that these two 

bodies should exercise this judicial power and determine this mooted 

question if any was to be determined. . 

The third reason why this power was intended by our forefathers to 

be lodged in the Senate and House of Representatives is because the 

ad to be done is in its nature a judicial act. Bear in mind, all the time 

the prevalent feeling in that convention was that Congress should elect 

the President. Bear in mind also the intention of the framers of the 

Constitution in creating the Senate of the United States was to create a 

body that should be above and superior to the House of Representatives. 

That was the idea and intention of the framers of the Constitution. I 

have no doubt there was great reason for it. Do you belie-.e they intended to submit to the House of Representatives alone such a great 

and important judicial question? 

What is this House? It is nothing more than :t rollicking mass meeting, that has no dignity except such as is given to t by the sanction of 

the law. The idea of our forefathers in creating the Senate was, it should 

be a check and balance on the House of Representatives. The House 

of Representatives was sup_posed to representthepopular will. Itwas 

suppo ed to come directly from the people. It was supposed it would 

be subject to public clamor. They created a body that was beyond it. 

They gave them longer tenure of office. They created them so they 

might be elected not by the people but by the Legislatures of the States, 

and for the purpose of standing between the House of Representatives 

and the other powers of this Government and keeping the House of Represen~tives from going to extremes. . Again, can you assert and claim that it was the intention of the 

framers of this Government that in determi.Iiing so grave a question 

the Senll>te of the United States was simply to sit as idle spectators of 

that great event. I say here every conclusion of reason and of common 

sense that can be derived from a careful consideration of this subject 

leads directly up to the idea that the Senate and the House acting concurrently were to be the power to determine what vote should be 

counted in the event of a dispute, and that that was the objecttin having the Senate present. 

I have already consumed longer time than I had expected on this 

question. I confess it is one of the most interesting which has been 

before this Congress. There is much more that had occurred to me to 

say in the progress of speaking, and many thoughts, suggestions, and 

ideas that had not occurred to me before have been suggested to me by 

the questions which have been asked, and I would have been glad to 

have had time to discuss them; but I have consumed more time than 

perhaps I ought to have consumed in this debate. I therefore yield 

the floor, reserving the balance of my time. 

Mr. WHITE, of Kentucky. Ur. Speaker, I feel the older members 

on this floor, who know more about the Constitution than I do, should 

be heard. I would rather hear them than be heard myself, and therefore I now yield my time to thegentlemanfrom Indiana (Mr. BROWl.TE]. 

Mr. BROWNE, of Indiana. Mr. Speaker, I only consent to talk a few 

moments at the conclusion of this discussion because I differ with those 

on both sides of the House who have preceded me. It has become a 

stereotyped expression, I believe, that the Government of the United 

States is one of express powers. It has none except those that are expressly conferred by the Constitution and such implied powers as ate 

essential to the due execution of tho ewhich are expressed. \Vhen we 

find in the Constitution a power to do a thing there comes with it, by 

necessary implication, the power to equip the machinery by which the 

first power is to be executed. I give this position my approval. The 

Government is the creature of the Constitution and can only exercise 

the powers given it by that instrument. 

Now, I desire to inquire where in this Constitution the power has 

been conferred upon the Congress of the United States to determine any 

question in connection with this count of the electoral vote. It is not 

contended by any gentleman here that the power has been conferred on 

the Senate acting separately from the House, or the House of Representatives actillg separately from the Senate. But it is insisted that 

the two Houses, acting in some way either independently or concurrently 

or in joint convention, have something to do judicially in the determination of questions that may arise upon the count of the ele<!.toral vote. 

This I deny. The framers of the Constitution withheld from Congress 

the power to interfere with this count; they withheld it by not committing the power to it. When the Constitution confers a power ft does 

so in express words, as Congress shall have power to borrow money, collect taxes, regulate commerce, coin money, and the like. By no words, 

by no implication, has the power been given Congress to settle questions 

concerning the electoral count. Turn to the second article, first section 

-· 
5466 CONGRESSIONAL RECORD--HOUSE. JUNE 21, 

of the Constitution and from there to the twelfth amendment to the 

Constitution, and you will find that the only powers conferred upon Congress in this respect are, first, that it may fix the time for choosing the 

electors and the day on which they shall give their votes. That power 

is expressly given by the Constitution. 

Next, it is provided that the count shall be had in the presence of 

both Houses. There is no question now about the right of the two 

Houses to be present at the count of the electoral vote. The Constitution goes further than this in its expressed powers. It provides that in 

a certain event it shall be the duty of the House of Representatives, in 

a manner particularly pointed out by it, to elect the President. It goes 

further, and confers upon the Senate of the United States the power in 

a certain exigency to elect the Vice-President, and these are all of the 

powers delegated by the Constitution to_ the Congress in this connection. I defy gentlemen to point to any others. So far as it maybe essential to execute these expressed powers I admit that Congress bas 

certain implied powers. It may provide the necessary means by which 

these expressed powers shall be executed. Let us see: Congress has 

the power, as I have said, to fix the time for choosing the electors. and 

the day upon which they shall vote. Anything now that is essential 

to the execution of that power is legitimately within the sphere ofCongressional action. This is not questioned. 

The two House8 are required to be present, or at least it is the duty 

of the President of the Senate to open the certificates in the presence 

of the two Houses. There is no question about Congress having the 

power to provide the manner in which the Houses shall meet, the place 

at which they shall meet, the time when tbeyshall meet, and the manner of adjournment. In these respects it may possibly, under this 

delegation of powers, have a right to provide. Indeed! do not doubt it. 

But let us go a little further and see whether Congress under the Constitutio.n bas, by expressed grant or by implication, the power to take 

part in the actual counting of the votes. Now, it is not controverted 

that the el~tion of President and Vice-President is to be made by electors chosen by the States in the manner provided by the State Legislatures. It is not controverted, further, that if the States fail to provide 

for the appointment of the electors Congress is powerless to compel 

them to execute the trust. The Legislature of the State may refuse 

to provide any method of appointment, and the Government of the 

United States in that regard is powerless. It has no remedy. 

Or, again, the Legislature of the State having provided the method, 

and the electors having been designated in pursuance of the legislative 

plan may refuse to meet and cast their votes; and if they refuse to meet 

and vote, or if they refuse to meet at the place and vote at the time 

fixed by Congress, in either of these events the Govern.ntent is powerless. The States in this way may destroy the National Government hy 

their mere refusal to act. Congress can not compel the States to appoint 

electors nor the electors to act when appointed. 

If the electors meet· at the time appointed and cast their votes in the 

manner provided by the Constitution, but refuse to transmit them to 

the President of the Senate, the Government of the United States possesses no power under a writ of mandate or otherwise to compel the 

electors to send forward the vote; for that is the act of the State and 

within the jurisdiction of the State. Neither Congress nor the President of the Senate bas power to act in any way until the vote shall be 

certified and transmitted to the custody of the President of the Senate. 

But it is true if any of the States fail to vote or to certify their votes 

that the votes of those States that do meet and comply with the requirements of the Constitution elect a President. Thirty-five States 

{)Ut of the thirty-eight may refuse to execute the power, and yet those 

States voting under the requirements of the Constitution would choose 

a President under this very provision of the Constitution. 

I refer to these facts merely to show you that it was the purpose of 

the framers of the Constitution to submit the whole question of the 

election of the President to the States, and to keep it away from Congress. My distinguished friend from Kansas said the constitutional 

convention bad two or three times during their deliberations decided that 

the President should be elected by the House of Representatives--

Mr. PETERS. No; by Congress. 

Mr. BROWNE, of Indiana. I beg the gentleman's pardon; by Congress I should have said. It is true, and they as repeatedly retreated 

from that position fortheveryreasonlbaveattempted heretofore to give, 

that it was dangerous to submit this great power to a political body 

such as the Congress of the nited States. The fathers saw that partisan feeliDgand partisan prej ndices would enter into the deliberations 

of Congress. · The fathers, inspired by the gift of prophesy, looked down 

through the years, and saw that the time would come when the executive patronage would be enormous, and when it would be dangerous to 

submit the great question of selecting a chief magistrate of the Republic 

to a political body interested in the distribution of the spoils. For that · reason they retreated .from this proposition to submit this election to the 

Congress of the United States; and when the proposition was made in 

the convention to submit it to an election by the people, there was but a part of one out of the twelve States represented in that convention 

that gave its preference to that method of selecting the President. 

The convention by a decisive vote refused to submit the choice of 

electors to a vote of the people. It did not mtend that the people 

should choose the President. 

I want to say to my friends that as democratic as were the fathers 

they distrusted the people. James Uadi on, as good a Democrat as he 

was, said it would be dangerous to commit the suffrage to any but the 

property-holders, the freeholders, for the time would come when a 

very large majority of the people would be propertyless, and when that 

time came, when the propertyless became the ruling class in this 

coutitry, one of two things would happen: either they would combine 

to destroy property and therightsofproperty, or they would be bought 

by the affiuent and made the mere tools of opulence. That was hi.s 

prediction. 

Mr. PETERS. May I ask the gentleman was it not contemplated by 

our forefathers in this convention at one time to base the Senate upon 

a property qualification, and that the House should be elected by a 

certain cla...c;s of voters on a limited suffrage, as was their original idea? 

And was not that a strong reason i.E. favor of the idea that they intended 1 

that the Senate and House should act together; in other words, ~bat 

the body to be elected on a property qualification should act with the 

other body in determining this matter? 

Mr. BROWNE, of Indiana. I think my friend is right in the historical fact, although I may differ with him as to the conclusion be 

reaches. 

Mr. HISCOCK. Will the gentleman from Indiana allow me to interrupt him? · 

Mr. BROWNE, of Indiana. Yes, sir. 

Mr. HISCOCK. As I understand, he contends that both these bills 

are unconstitutional? 

Mr. BROWNE, oflndiana. Yes, sir. 

Mr. HISCOCK. Now, there has been a diversity of opinion on this 

great constitutional question. It has been in the arena of debate and of 

legislation. It is true, is it not, th;:tt in 1865 both branches of Congress 

asserted this power? 

1\Ir. BROWNE, of Indiana. Yes, sir; in the twenty-second joint 

rule. 

Mr. HISCOCK. In the twenty~second joint rule they both asserted 

this power. They also both asserted this power, and it was recognized 

by the President in the electoral-count bill. Now, the question I ask 

my friend is this: Wit,h all these decisions since 1864 on this question 

by Congress, which seems to be the highest tribunal to which we can 

address ourselves, is the question still an open one? 

1\Ir. BROWNE, of Indiana. In other words, the gentleman asks 

whether it is not 1·esjudicata? 

Mr. HISCOCK. Yes; whether it is 1·es judicata, or whether it is a 

question open for discussion now, after having been acquiesced in by 

this Government for twenty years? 

Mr. BRO~TE, Of Indiana.. I never knew any question was foreclosed by the action of Congress. But notwithstanding the statement 

of the gentleman, the constitutionality of the Ele<t.oral Commission and 

the twenty-second joint rule have always been challenged and will always be challenged until the Constitution is amended. • 

l\1r; HISCOCK. The argument I make is this: that an acquiescence 

for twenty years by the highest tribunal that can pass upon a question 

of that kind is such an acquiescence as to foreclose the question. 

Mr. EATON. 1\Iy friend from Indiana says be did not know the 

question to be foreclosed. I suppose he particularly referred to the fact 

that the persons who got_ up the twenty-second joint rule abrogated it. 

Mr. BROWNE, of Indiana. Now I will take the thJ;ead of my argument, if I can find it. It is enough to say of the twenty-second joint 

rule that it was always constitutional in the opinion of the party that 

under its pronsions could control the count. The other party never 

assented to it. But I was attempting to show by the a-ction of t'lt.e 

constitutional convention that tbe fathers were not so democratic as 

some seem to think; that they did not intend to let the President 

be elected eitlier by Congress, or by the people, or by electors to be 

chosen by the people. That proposition was made in the constitutional convention, but was voted down by an overwhelming majority; so we are forced to the position I assumed a few moments ago, which 

.is, that this election of the President of the United States is to be an election by States. 

But I may be asked, why is this important here and bow does it aid 

us in interpreting the Constitution? I answer, as the architects of this 

instrument intended the States, by their electors, to choose the President without interference on the part of the Government, they made 

no provision for Congressional action until it was ascertained by a count 

of the vote that the States had made no choice. Then and then only 

does the Government by its Congress begin to act. After reaching thi'! 

point the Constitution is explicit. It then proceeds to say, in unambiguous language, what shall be done by the Senate and what by the 

House. Before the count is had it is only provided that the President 

of the Senate shall, '' in the presence of the Senate and House of Representatives, open the certificates and the votes shall , then be counted." 

Will any ~tne seriously contend that the fathers would have chosen such 

language had they intended to confer on Congress the power to try judicially or otherwise the important questions that might arise before ' 

declaring the result of the electoral vote? Ifit was intended that Congress should try a contested Presidential election-the highest and 

gravest duty that could have been imposed upon itr-itis passing strange 

that the makers of the Constitution not only did not say so, but left 
1884. CONGRESSIONAL RECORD-HOUSE. 5467 

the whole question, to say the least, in doubt. Had the convention 

intended Congress to assume this immense responsibility it would have 

,given expression to that purpose in unmistakable language. I insist 

:that its failure to do this is strong, if not conclusive, evidence that it had 

no such purpose. 

I need not say to you gentlemen who have thought over this question 

.and have discussed it that the idea of the fathers was that these electors should be selected in a manner to be provided by the States; that 

they were not to be the choice of a party caucus or a party convention, 

but were to be selected because of their intelligence and integrity and 

high personal standing; and that these men were not to be instructed, 

but left perfectly free to exercise their own deliberate judgment in the 

·election of a President and Vice-President of the United States. It 

was an excellent idea; and I sometimes regret that the spirit of that 

intention of the fathers has not been carried out. But our system of 

election is a deliberate departure from the electoralidea, and the electoral plan is now not only full of difficulties but full of peril to the 

Republic. . It never entered into the conception of the framers of the Constitution that within a very few years we would remit this question of api)Ointment to a popular vote. Had the fathers foreseen that this would 

have been the result it would have been prohibited by the Constitution 

they made. Then these persons, if they were thus selected and were 

permitted thus to choose a President of the United States, and were, as 

I have said, left perfectly free to make this choice without party or 

eaucus dictation, when they voted their choice they could be arraigned 

before no tribunal for having violated party instructions or party confidence. We have permitted that idea to stand in the electoral system 

from that day to the present. If we elect Democratic electors the Constitution imposes upon them no obligation to vote for the Democratic 

candidates. If they disobey their instructions they commit no crime 

against the Constitution, nor can you formulate a law under which they 

can be punished for this independent action without violating the spirit 

-of the Constitution. But I do not intend to dwell upon that point. 

Suppose the electors have been duly appointed. They vote. The 

-certificates of election have been transmitted to the President of the 

Senate, and he, the President of t1ae Senate, has become the custodian of 

these certificates. What certificates ? Every paper that may be sent to 

hlm? No. Will any gentleman contend thatthatis what the Constitution means? Thatif John Smith certifies that Tom Jones and Peter 

Green and Billy Wiggins have been elected as electors from the State 

-<>f Connecticut and transmits that paper in some way to the President 

of the Senate, he must regard it as a certificate, to be kept by him and 

opened by him and laid before the two Houses when they meet under 

the Constitutitm? I presume nobody insists upon such a proposition. 

Then what certificates are transmitted to him? The certificates of 

t he action of the electors of the States in choosing a Pre ident and a 

Vice-President, as certified by the States. It is the certified action of 

the State; that is the certificate that goes to him and no other. Of 

that he becomes custodian. He becomes the custodian of nothing else. 

He can accept nothing else. He could not be the legal custodian under 

'the Constitution, or constitutional custodian of any other paper than 

the certificate of the State transmitting to the Congress of the United 

States-if you please to put.it in that way-theaction of the agents of 

the State in the selection of President and Vice-President. To say that 

the President of the Senate must accept and open and lay before the 

two Houses all papers purporting to be certificates of States, or certificates of electoral colleges, is equivalent to saying that this high and 

solemn proceeding shall be converted into a miserable farce. 

Now, t he Presidentof the Senate is to open the certificates. What 

is meant by the word ''open?' ' Does it mean that he is the11 for the 

first time to break the seals of those certificates in the presence of the 

two Houses; that he must keep the envelopes closed until the two 

Houses meet together, and then is to open them in their presence? I 

undertake to say that the opening ofthecertificates means, in the legal 

and con titntional sense, the giving out of their contents, the making 

known the action of each of the States, as made manifest by the vote of 

i1-.s electors. 

But you may put it the other way, if you please-that he must break 

the seals for the first time in the presence of the two Hou es. Then I 

assert that when he opens the certificates in the presence of the two 

Houses he opens only those which contain the votesofthe electorsappointed by the States. Am I right about that? If he goes beyond 

that, how far may he go and where must he stop? 

Suppose that, in some way or other, he has two papers, each of which 

purportS to be from a State. I assume that as the Constitution makes 

it his duty to open in the presence of the two Houses simply the legal 

certificate of the State, he must determine the question as to which of 

those two papers is that certificate. And why? Not only because the 

Constitution imposes upon him the duty of laying the true certificate, 

the certificate, before the two Houses, but you may examine the Con-

:Stitution in vain to find the power committed to anybody else to determine which is the true certificate. As he must open the vote ef the 

electors only, he must of necessity ascertain which certificate contains 

that vote. 

I ask you gentlemen, who are seeking to find the powers of the Gov-

-= 

ernment in the Constitution, to point out the place where any other 

t1·ibunal, the Senate or the House, or both of them, can exercise a single 

judicial function in connection with the certificate after it has been 

opened, or a single judicial function in connection with it before it has 

been laid before the two Houses. 

I admit that the Constitution does not expressly, in words, if you 

please, confer the power upon the President of the Senate to count the 

vote. When I say it does not expressly confer that power, I simply 

-mean to say that it is not conferred in so many words; that is all I intend to say. 

Let us see what the Constitution does say. As I said before, the 

President of the Senate is made the custodian of the e electoral votes. 

He is the ~nly person under the Constitution who can open them, or 

who can determine which of two papers from a State is the legal certificate of that State. It is transmitted to him, and it is his duty to 

lay such certificate before the two Houses. 

I undertake to say that but the one certificate, and that the true 

legal certificate of the State, which he has ascertained, and which it 

has been :made by the Constitution his duty to ascertain, can he lay 

before the two Houses Now, if he has done that, ifhehaslaidsimply 

the certificates of the States, the real votes of those States, before the 

two Houses, what is there then to do? Whoever may do it, whether 

it be the act of the two Houses or the act of the President of the Senate, what is to be done except the mere ministerial act of adding up the 

votes? 

And that is the reason, let me say to you, that in my opinion the 

framers of the Constitution made no mention of the important question as to who should determine the eligibility of the elector or the 

propriety of an electoral vote. Can it be possible that while the fathers 

provided the manner in which the two Houses should meet, while they 

provided the manner in which each should elect, the one the President 

and the other the Vice President, in case those officers had not been 

elected by the electoral vote-is it possible that the fathers went into the 

details on those questions, providing specifically the manner in which 

the two Houses should act in making selections for those particular 

offices, and yet they left out the important question, if it was intended 

to confer the power upon the two Houses at all, of the manner in which 

the two Houses should exercise the power of determining the eligibility 

of an elector or the legality of an electoral vote? Sir, it was not anticipated by the fathers that such a question could in the nature ·of things 

arise. Let the President of the Senate determine all the questions 

committed to him, and this whole subject is relieved of its embarrassments. 

I have assumed that as the President of the Senate is the custodian 

of these certificate , he is simply required to lay before the two Hou es, 

when they have met together the actual, legal certificate of the action 

of each State. He is bound to do that, and as a matter of course he 

has the power to determine if he has ~o papers coming from any one 

State which one of the two is the legal certificate. In the event he 

makes this choice, then there can be but one certificate from that State 

to be laid before the two Houses. And then the two Hou es, if they 

are present for any purpose connected with the counting of the votes, 

are simply by their tellers to add up the votes, and the result is to be 

declared. 

Some gentlemen say, is it possible that the two Houses are there simply to be witnesses? Is it very important, they say, that the two 

Houses should be there simply for that purpose; and it would be unimportant if they were there for no other purpo e. What purpose? 

A President of the Republic has been elected, and his election is to 

be declared. I do not care by whom the declaration is to be made. It 

seems to me to be a matter of the utmost propriety that the declaration should be made before the supreme legislative power of the nation. 

But the two Hous.es are not present simply to be witnesses: They are 

there for another purpose, and the Coll!'t itution expressly states it. 

There is an express declaration in the Constitution of the purpose for 

which the Senate and the House of Representatives ate present when 

the votes are opened and counted. It is this: If, when the electoral · 

votes have been counted, no eandidate has received a majority of all of 

them for the Pr idency, the House shall immediately proceed to elect a President. If, in the same manner, no one has received a majority of 

all the votes for Vice-President, then the Senate shall immediately proceed to elect the Vice-President. The two Houses are present to see 

whether or not this exigency happens; and if it does happen, they are 

present that they may immediately exercise the power conferred on 

them by the Constitution of the UnitedStates, so that the Government, 

by the failure of the electors to elect a President or Vice-President, shall 

not lapse, but that thetwo Houses in the constitutional way shall pro· 

ceed to elect respectively these officers of the Government. 

Gentlemen say that it was certainly never intended to give to the 

President of the Senate o grave a power. We can only judge intentions by looking to the language of the instrument. But to me it is 

clear that the convention expected most, if not all of these questions, 

to be settled by the States. I have no time to make more than a suggestion here-its fuller presentation must be left to the futme. 

I am, however, notwillingtoadmitthatthe power to·trya co:Jiltested 

Presidential election is less safe if exercised by the President of the 
5468 CONGRESSIONAL RECORD-HOUSE. JUNE 21, 

Sen:-.te than if left to Congress. .An officer of the law, one man, vested 

with a grave public duty, who e action is under the eye of all, who is 

answerable to all parties, is, in my opinion, less likely to commit a crime 

against constitutional government and the liberties of the people than 

a tribunal where the responsibility is divided among a large number, 

and especially when that body is partisan, and acts at the dictation of 

and is backed by a strong and well-organized political party. 

Now, gentlemen, in conclusion let me say the reason I have talked 

upon this subject is not because I am unwilling to submit to a twentysecond joint rule or to an aet of legislation incorporating that idea. I 

would a thousand times rather see the Constitution of the country 

violated in this respect and by the passage of this bill than see this 

grand Republic of55,000,000 offreemen, thelight and the hope ofthe 

world, wrecked by a collision of parties and by fratricidal war. I say 

I would waive any constitutional objection I have on this subject-! 

would vote for an electoral commission or any kind of a commissionin order to Ba\e thi Government of ours for the ages. I beg to ass11re 

yon, sir, to assure the House and the country, that I prefer this bill, 

unwise, partisan, and unconstitutional as I believe it to be, to such a 

collision as this vexed question, if unsettled, may some time provoke. 

I have spoken on this question to admoni h you gentlemen on the 

other side. Let me say just a plain word toyou. While your bill puts 

it in your power by this joint convention to count in the next President; 

while the bill gives you that advantage if you desire to exercise the 

power, for you would have a majority of 70 or 75 in the joint convention, yet when that time comes you may be confronted by this constitutional view which I have presented and which I belie\e to be the 

true interpretation of the Coustitution. You may find a President of 

the Senate who will accept the responsibility of counting this vote, and 

may the good Lord save us from any such conflict as our honest differences may bring. I hope to avoid all contro\ersy by setWng these 

questions in advance. I have only alluded to that matter because I 

desire to impress every member with the fact that this is the most important subject that has been or can be considered by this Congress; 

and I am surprised that the wisdom ru;td ,patriotism of the two Houses 

of Congress have n~t brought them together upon some common ground 

on which all parties and all patrioti<l"fnen can stand. I moreover desired to impress on the House that there are strong reasons for believing 

that the President of the enate has the right to count the Presidential 

vote, and that although tho e who entertain these views may be willing to compromise them for harmony, they may not willingly surrender 

them to a measure so purely partisan as is this bill. 

Mr. EATON obtained the floor. 

:Mr. WHITE, ofKentucky. If my friend from Connecticut will yield 

a moment I desire to make a single remark. I am very glad to have 

had the pleasure of yielding my time to the gentleman from Indiana 

fl\Ir. BROWNE]. I did not know what line of argument he would 

pursue, but I am delighted to know that he has expres ed my views so 

much better than I could have done myself. 

I will only add that as a member of the committee I do not approve, 

as tbe chairman of the committee well knows, either of the bills now 

under consideration. Rather than accept either of these bills, I prefer 

to take the Constitution as it is, with all the dangers that may confront 

us. 

Mr. JORDAN addressed the House. [See Appendi"'{.] 

:Mr. HERBERT. Will the gentleman from Connecticut yield to me 

that I may send up au amendment upon which he may also ask the 

previous question? 

Mr. EATON. I yield for the amendment. 

Tbe SPEAKER pro tempore. The Clerk will read the amendment 

ent up by the gentleman from Alabama. 

The Clerk read as follows: In the event that the House substitute is defeated, amend section 2 of the Sen- ate bill by inserting, in line , between the words "shall be" a~d the word" con· cl usive " the words " unless overruled by the concurrent actiOn of the Senate . and the House of Representatives." 

:Mr. EVERHART. I desire to offer an amendment to the substitute. 

The SPEAKER pro tempore. The gentleman fro~ Pennsylvania 

desires to have read an amendment,tha it may be con idered as pending. 

The Clerk read as follows: In ection 3 of the substitute, after the word !'vote," in the fourth line, insert 

''the IIouse of RepresentatiYes voting by States! each State having two votes, 

and the Senate voting per capita;" so that it sba I read: . " And the joint convention shall then proceed to Yote, the Honse votmg by 

States, each State having two votes, and the Senate voting per capita." 

The SPEAKER pro tempm·e. If there be no objection this amendment will be considered as pending. 

There was no objection. 

Mr. PETERS. I have some t>.mendments to submit to the substitute. 

The SPEAKER pro tempore. Is the substitute pending? 

l\Ir. EATON. It is. 

The SPEAKER pro tempore. It will be considered as pending. 

Mr. PETERS. I submit the following amendments to that substitute: 

First amendment: In line 1 of section 3, after the word "Congress," insert 

"and the Supreme Court of the United States." In line 3 of section 3, at the commencement of the line, insert " the Supreme Court of the United States." 

Second amendment: In line 1 of section 4, on page 9, strike out the figure "4" and insert" 5." In line 4, after the word "left," insert "the members of the 

Supreme Court in the body of the Hall, on the left of the presiding officer." 

'l.'hird amendment: In line 40, on page 8, strike out all of section 3 after the 

word "Senate," and in ert the following: "Then tho e votes, and those only • shall be counted which the two House , acting separately, shall concurrently 

decide to be the lawful votes of the legally appointed elector of uch State. 

When the two Hou es have voted, they ball immediately again meet. and the 

presiding officer shall then announce the decision of the que tion ubmitted. 

When the two IIouses separate to decide upon an objection that may have been 

m!l<de to the counting of any electoral vote or votes from any State, or other 

question arising in the matter, each Senator and Representative may speak to such objection or question five minute , and not more than once; but after such 

debate shall have lasted two hours it shall be the duty of the presiding officer of 

each Hou e to put the main question without further debate." 

Fourth amendment: Add the following as an additional section, to be num- bered section 4: •' In case of a di agreement between the two House::~ upon any question submitted to them separately, as hereinbefore provided, then a com- mittee of conference of like number and in like manner as in a disagreement upon any legislation shall be appointed, which committee shall forthwith meet. and after a session of not more than two hours shall report the result of their 

conference to the re pective Hon es. Should the two Houses fail to agree upon the disputed question the committee of conference shall again meet, and shall 

forthwith present the disputed que tion to the. Supreme Court of the United 

States, who, after one hour's argument on the part of the Senate and one hour's 

argument on the part of the House, shall forthwith decide the question pre- sented, and such decision shall be binding upon the Senate and the House of 

Representatives." 

Mr. EATON. I now demand the previous question on the bill and 

amendments. 

The previous question wa ordered. 

:Mr. PARKER. I rise to a parliamentary inquiry. Isnotthestatus 

of the question that the Senate bill is pending and the bill reported by 

the committee is pending a_s a sub titute for it? 

The SPEAKER pro tmnpore. The Chair is under the impression that 

is the situation, but in the ab ence of the Speaker will not undertake 

to decide. 

Mr. HERBERT. That is the condition of the question. 

Mr. EATON. I have been request-ed by two or three ·gentlemen to. 

ask that such members as may desire to print remarks on this subject 

may have permission to do so. 

The SPEAKER pro tempore. The Chair hears no objection, and i\ 

is so ordered. 

E~ROLLED BILLS SIGNED. 

Mr. NEECE, from the Committee on Enrolled Bills, reported that 

the committee had examined and found truly enrolled a bill of the following title; when the Speaker signed the same: 

A bill (H. R. 2677) granting a pension to Miss Mary P. MacBlair. 

MESSAGE FROM THE PRESIDE.NT. 

A message in writing from the President of the United States was 

communicated to the Honse by Mr. PRUDE..>q, one of his secretaries, wh<> 

also announced that the President had approved and signed bills and 

joint resolutions of the following titles: 

An act (H. R. 4701) to change the times of holding the district and 

circuit courts of the. United States in the northern district of Georgia; 

.An act (H. R. 6933) to authorize the National Academy of ciences 

to receive and hold trust funds for the promotion of science, and for 

other purposes; · 

.An act (H. R. 4988) to remove the disabilities of William H. Parker, 

of Virginia, incurred under the fourteenth amendment of the Constitution; 

Joint resolution (H. Res. 257) providing for the printing of the last 

annual report of the Commissioner of Education; and 

Joint resolution (H. Res. 235) to print additional copie of certain 

publications. · 

MRS. ELIZA W. PATTERSON. 

The SPEAKER pro tempore laid before the House the following message from the President; which was referred to the Committee on the 

District of Columbia, and ordered to be printed: 

To the House of Representatives: . 

I have permitted House bill .No. 4689, entitled "An act for the relief of Eliza W. Patterson," to become a law by withholding action upon it fortendaysafter 

it;;:: !if:~~~~ ~~:~sts of the District of Columbia are committed to Congress as its leooislature. I do not question the constitutional right of Congress to 

pass ala~ relie\ing the family of an officer, iJ?- view of the s~rvice he had ren- dered his country, from the burdens of taxatiOn, but I submit to Congress that 

this just gift of the nation to the family of such fa!thf';ll o!ficer should come from 

the national Treasury rather than from that of thts D1stnct; and I therefore rec- ommend that an appropriation be made to reimburse t-he District for the amount of taxes which would have been dtie to it had this act not become a Jaw. . CHESTER A. ARTIIUR. EXEC'CTIVE MANSJO::s", June 21, 1884. 

LEAVE OF ABSENCE. 

By unanimous consent, leave of absence was granted in the following cases: . To :Mr. EVINs, of South Carolina, indefinitely, on account of sickness. To Mr. GR.A VES, for five day , on account of important business. 

To Mr. RoBL'\ o~, of Ohio, indefinitely, on account of important 

business. 

To Mr. CLARDY, for five days, on account of important business. 

To :Mr. M:ATSOX, for one week, on account of important business. 

And then, on motion of 1\Ir. ROGERS, of Arkansas (at 5 o'clock and 

50 minutes p. m. ), the House adjourned. 
1884. CONGRESSIONAL RECORD-. SENATE. 5469 

PETITION , ETC. 

The following petitions and papers were laid on the Clerk's desk, 

under the rule, and referred as follows: 

By Mr. ELDREDGE: Petition of 'Voodbury Post, No. 45, Department of Michigan, asking a pension for all Union soldiers of the la~ 

war who served sixty days or more-to the Committee on Invalid Pensions. 

. By Mr. GLASCOCK: Memorial of W. W. and Emma R. Wirt, sole 

survivors of John L. Wirt., who was wounded in the official discharge 

of his duties on the floor of the Hou e of Representatives-to the Committee on Accounts. 

By ~lr. HARMER: Petitition of W. F. Potts relative to the extension of certain letters patent-to the Committee on Patents. 

By l\1r. H. H. HATCH: Resolution ofLockwood Post, No. 139, Grand 

Army of the Republic, Department of Michigan, relative to pension,s, 

&c.-to the Committee on Invalid Pensions. . By 1\Ir. LOWRY: Memorial relating to the claim of James McCabeto the Committee on Claims. 

By Mr. S. H. 1\ITLLER: Petitions of citizens of Titusville, of Brookville, of Brownsville, of Connellsville, of Corry, of Franklin, of New 

Castle, of Warren, of Uniontown, of Union City: of Sharon, of Renovo, 

of Mercer, of Meadville, of Kittanning, of Greenville, and of Pittsburgh, Pa., and of citizens of Fredonia, N. Y., remonstrating against 

Government control of the telegraph- everally to the Committee on 

. the Po t-Office and Post-Roads. 

By l\fr. MORGAN: Memorial of the Saint Louis Academy of Science 

against the bill for the discontinuance of the Coast Survey-to the 

Committee on Commerce. 

By Mr. RANDALL: Three petitions of members of the Grand Army 

of the Republic, praying for the establishment of a national cemetery 

near Philadelphiar-to the Committee on Military Affairs. 

:By Mr. YOUNG: Petition of E. M. Massey for a pension-to the 

Committee on Invalid Pensions. 

Also, petitions relating to the claims of 1\Irs. Caroline H. Renney, ex- ecutrix, &c., of William W. Goodwin, administrator, &c., of Merirt 

Harris-severally to the Committee on War Claims. 

SENATE. 

MONDAY, June 23, 1884. 

Prayer by the Chaplain, Rev. E. D. HUNTLEY, D. D. 

The Journal of the proceedings of Saturday was read and approved. 

ELIZA W. PATTERSON. 

The PRESIDENT pro tempore laid before the Senate the following 

message from the President of the United States; which was read, 

1·eferred to the Committee on Appropriations, and ordered to be printed: 

To the Senate: 

I have permitted House bill No. 4689, entitled "An act for the relief of Eliza. 

W. Patterson," to become a law by withholding action upon itfor ten da.ys after it was presented to me. The affairs and interests of the District of Columbia. are committed to Con- gress as its Legislature. I do not quest.ion the constitutional right of Congress to pass a law relieving the family of an officer, in view of the services he had 

rendered his country, from the burdens of taxation, but I submit to Congress 

that this just gift of the nation to the family of such faithful officer should come from the national Treasury rather tha.n from tha.t of this District, and I therefore recommend that a.n appropriation be made to reimburse the District for 

the amount of taxes which would ha.ve been due to it had this act not become a law. 

CHESTER A. ARTHUR. EXECUTIVE MANSION, June 21, 188!. 

PETITIONS AND MEMORIALS. 

1\Ir. SHERMAN. I am requested to present the petition of George 

S. Coe, president of the American Exchange Bank, Arthur B. Graves, 

president of the St. Nicholas Bank, William Dowd, president of the 

Bank of North America, and other bankers, merchants, and capitalists 

of New York, praying that this Forty-eighth Congress authorize the 

Secretary of War to contract with Charles Stoughton and his associates 

for the entire work of improving the Harlem River, New York, for a sum not exceeding $1,295,000, including the furnishing the right of 

way free of cost to t.he United States, the work to be completed by 

July 4, 1886. I mo>e the reference of the petition to the Committee on Commerce. 

The motion was agreed to. 

J)fr. SHERMAN. I also present a memorial signed by a large number 

of business men, lawyers, and others, of the city of Toledo, Ohio, re- mon trating against the passage of the bill nowpending before the Judiciary Committee relative to jurisdiction of United States courts in 

certain cases. I move that it be referred to the Committee on the Judiciary. 

The motion was agreed to. 

Mr. PENDLETON presented the memorial of 1\Iarsh and Harwood 

Company and E. Grasselli & Sons, of Cincinnati, Ohio, remonstrating 

against the passage of the bill for the construction of certain bridges across Staten Island Sound; which was referred to the Committee on Commerce. 

Mr. PLATT presented additional papers to accompany the bill (S. 

2334) for the relief of Sigmund Bauer; which were referred to the Committee on Pensions. 

Mr. CONGER presented resolutions adopted by Lockwood Post 

Grand Army of the Republic, Alpena, 1\Iich., in favor of legislation as recommended by the general pension committee of the Grand Army of 

the Republic; which was referred to the Committee on Pensions. 

Mr. HAWLEY presented the memorial of Franklin Rives, of Washington D. C., for himself and for the heirs of Jefferson Rives, offering 

to the' Government an additional building for the areommodation of 

the Government Printing Office; which was referred to tp.e Committee 

on Public Buildings and Grounds. 

REPORTS OF COl\fMITTEES. 

Mr. INGALLS from the Committee on the Judiciary, to whom wa 

referred the bill (H. R. 7034) to increase the salary of the clerk of the 

Court of Alabama Claims, reported adversely thereon. 

Mr. HALE. I ask that the bill be placed on the Calendru:. 

The PRESIDENT pro tempore. The bill will be placed on the Calendar with the adverse report of the committee. 

Mr. GARLAND, from the Committee on the Judiciary, to whom was referred the bill (S. 715) to compensate physicians for services rendered 

under an order of the United States court of the northern district of 

Alabama, reported it without amendment. 

He also, from the same committee, to whom was referred the bill (H . R. 4411) to amend section 101 of the Revised Statutes of the United 

States so as to allow the chairman of a subcommittee of a committee 

of either House of Congress to administer oaths, reported it with an amendment in the nature of a substitute. 

Mr. BLAIR, from the Committee on Pensions, to whom were referred 

the following bills, reported them without amendment, and submitted 

reports thereon: 

A bill (H. R. 3307) granting a pension to Harriet P. Dame; 

A bill (H. R. 6542) granting a pension to Harriett S. Brisbine; and 

A bill (H. R. 1751) for the reliefofWilliam R. Browne. 

BILLS INTRODUCED. 

~fr. BECK introduced a bill (S. 2335) to amend section 3330 of the 

Revised Statutes, relative to the export of distilled spirits; which was read twice by its title, and referred to the Committee on Finance. 

Mr. LAPHAl\1 introduced a bill (S. 2336) to fadlitate the bridging 

of Raritan Bay, Arthur Kull, and Kill von Kull; which was read twice 

by its title, and referred to the Committee on Commerce. 

He also introduced a bill (S. 2337) for the relief of Thomas Farthing 

and Matilda Farthing as executrix of George Farthing, deceased; which was read twice by its title, and referred to the Committee on Claims. 1\Ir. PLATT (by request) introduced a bill (S. 2338) granting an increase of pension to l\Irs. Mary Mcintosh, widow of First Lieut. Donald 

Mcintosh, Seventh Cavalry, United States Army; which was read twice 

by its title, and referred to the Committee on Pensions. 

1\Ir. FRYE introduced a bill (S. 2339) to authorize the appointment 

of a commission of naval architects and marine engineers to examine 

and report upon new designs for steamships; which was read twice by 

its title, and referred to tbe Committee on Commerce. 

DEP ARTM.ENTAL INVESTIGATION. 

Mr. HALE. I offer the following resolution, and ask for its present 

consideration: 

Resolved, That the Committee on Public Expenditures be, and is hereby, directed to investigate the recent defalcations of disbursing officers in some of the 

Departments in Washington and the alleged frauds upon the Government by means of false vouchers in theN a.vy Department, and to inquire into the system 

adopted by such Departments for making disbursements a.nd purchases of sup- plies, with a. view to determine whether it embraces sufficient safeguards against 

defalcations and frauds; a.nd said committee is authorized to sit during the va- cation of Congress, and shall ha.ve power to send for persons and papers in the course of its investigation. 

The PRESIDENT pro tentpo-re. The Senator from 1\Iaine asks that 

the resolution be now considered. 

Mr. MORGAN. The Senator mentions in his resolution, as! understand it, making investigation into some of the Departments without 

naming them. 

The PRESIDENT. pro tempore. Is there objection to the present con- sideration ofthe resolution? 

l\Ir. COCKRELL. Let it be read. 

Mr. HALE. Let it be read. I think the Senator froin Alabama will 

not object when he hears it read. 

The resolution wa-s read. 

l\Ir. HALE. What is the title ofthe committee as given in the res- olution? 

The PRESIDENT pro tempore. Is there objection to the present 

consideration of the resolution? The Chair hears none, and it is before the Senate. 

Mr. HALE. Let the Chief Clerk read the title of the committee. 

The Chief Clerk read as follows: 

JUsoZved, Tha.t the Committee on Public ExpendituresYr. HALE. That should be changed so as to read, "the Committee on Expenaitures of Public Money." That is the committee which for