The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1876-11-27
I sI,or,iti be the return from the State in tim

s should be the return from the State in tila
3 case. Sss59
Mr. MORTON: Iii the case suggested b
!. tile Senator from Virginia, where faction
gets up another set OF returns OF electora
! votes for the purpose OF depriYirg a Stat
of it's vote, something must be left to TIN
4 integrity and Judgment OF Congress. Take
that very case where faction works up
4 false set OF returns, and they are sent to Thu
4 president Of the Senate. If you do not pro
vide for, the two houses settling that ques
ton, you necessarily leave him to pick on
the package that he thinks ought to bt
counted. He is as liable to be swayed by
political considerations as both houses are
or as either house is, and therefore the
same difficulty returns.
/ Mr.. MAXEY raised an objection.
Mr. MORTON: Where there are two sets
OF votes and the houses disagree they mast
both fall unless you go to some other tri
! bunai. Who can decide that question
What other tribunal can decide the,ques.
ton? You cannot have it decided by Q
court, for that would be clearly in violation
OF the Constitution. II, when the Senate
comes to decide the question which is the
correct return, il there is a tie vote in the
Senate, and the Vice President is presiding,
not president pro tempore, he can cast q
vote in that case, deciding the question in
the Senate; but there is no provision in our
Constitution authorizing the Viee-President
or any other officer OF Government to
come in and settle the question where the
| two houses disagree. II there is tie vote
| in the Senate the Vice-President can cast the
| deciding vote; but it IS not in conformity
with the spirit OF our Constitution to pro-
vide for some officer who shall settle be-
tween the two houses when they disagree.
Therefore it seems to me that this provision
| is a matter OF necessity. You have got to
leave this disputed question somewhere.
and is it not safer, is it not more democratic,
more republican, to leave it to the two
houses than to any single officer? You ca3-
not take it into court, that is clear.
Mr.. BOUTWELL,: | agree entirely with
the suggestion made by the honorable CHAIR
man OF the committee Mr.. Morton] in re-
gard to the power to count the votes and
the duty to count the votes, that one was
conferred upon Congress and the other en-
Joined upon Congress. The power and the
duty are in Congress. Congress must eXer-
else the power and perform the duty, and it
is not possible under the Constitution to
transfer it to anybody else. There can be
under the Constitution no tribunal to decide
that or any other question arising in The
course of Counting the uotes, because it is q
duty imposed upon the t,co houses Of Con-
greSS. They alone can perform 1t, md they
haze not The polcer 10 transfer its perform
ance to anybody else. Vhether this po,cer
is there for 1cedL or for ,1oe, there IL is and
until the Constitution is altered there 1t mast
remain. ... . ..--.-s
Mr.. THURMAN: We all agree,
I think T am right i'll saying, that the duty
OF the president OF the Senate is simply
ministerial; that he is not constituted the
Judge to decide whether 4 return is valid or
not. The whole history OK the country, /
think. is against any such Interpretation OF
the Constitution us would confer on him
that power; and the fact that more than
once the Vice President who presided over
the Joint convention was himself caId-
date either for the Office Of President or
Vicc-P President would seem to be quite s.lf-
ficient to show that it never was the inten-
ton OF the trainers Of the Constitution, or
OF the people who adopted it, that this great
power Of Judging OF elections should be de-
cided by one man, and he il candidate.
Mr. EATON: I did not suppose myself
that the Vice-Prcsidcht counted the votes
nj all. aa.
Mr.. THURMAN: That was exactly the
conclusion would have come to, that the
counting is not by the Yice-PreSident, and
these facts show that it never could have
been contemplated that he should be the
| Judge OF the election. What his duty is is
prescribed in the Constitution:
i "The president of the Senate shall, IN The pre-
scpce of the Senate and House of Representatives,
open all the certificates. and the votes shall then be
COunted.n 81. -. Z. - r...
There is no duty devolrcd upon him but
| to open the certificates in the presence OF
the House OF Representatives. That is all
the function that is devolved upon the pres
ident OF the Senate, and that is all the duty
he has to perform. We do not disagree
about that. The votes then are to be
counted How are they to be counted !?
| They have been counted by sort OF COM
mon understanding as to the mode OF pro-
cedure. They were up to the time OF the
adoption Of the twenty-second Joint rule.
But now that joint rule, it is held, has been
abolished by the Senate receding from it, or
by its falling at the end of 4 Congress. So,
at least, l understand 4 majority OF the Sem
ate to hold. How then are the votes to be
counted. In answer to what is said by the
Senator from Massachusetts about q law
being imperative, and some remarks that
seemed to favor the regulation OF this mat
ter by rule, I have this fundamental princl-
pie to assert: that where power is vested
in any department Of this Government, and
the particular mode OF exercising that
power is not prescribed in the Constitution,
That mode is to be prescribed by law.
never thought that 4 Joint rule
was the proper mode. I repeat, when 4
power is vested in any department OF this
Government, and the mode OF its exercise
is not prescribed by the Constitution, the
prescribing OF that mode belongs to the
Iaw-making power, the Congress OF the
United States; and, therefore, in this case,
where the Constitution simply says that
these votes shall be counted, without pre-
scribing in detail the mode OF their count,
it follows necessarily from the structure and
genius OF our Government, and from the
very nature Of legislative power, that that
mode is to be prescribed by law. / never
believed, therefore, that 4 joint rule was the
proper mode. l believe that law is the
proper mode; and / believe that that law
binds eyerybody--binds each house OF Con-
gress rs much rs any law binds as until 1t
is repealed. ] have no difficulty, therefore,
with this being q law. / think ii proper
that it should be in the shape OF bill to be-
come 4 law.
EObserve that Mr.. Thurman twice said
the whole Senate, Democrats and Republic
cans, denied the power OF the president OF
the. Senate to count the votes, and that no
Republican senator arose to correct him.
a -+rrr-y