The New York herald., 1877-01-23


formancc OF that duty upon commission and upon
any person u sees proper 70 put In that situation his
posl.on would 20 terrible. ihe Senator IN applying
But, ~ have said only intended this occasion
explain u as brief way ns could exactly what the III
that @ "n's sox
ssss @ M s &c am S Gs
rest with either house Of Congress until Congress
that the whole day might be spent upon them.
The position Of the Senator 10 that the constitution
created the duty TO count the votes but did not locate
tho power or duty anywhere, ana that Congress,
under the general power TO pass laws necessary and
proper TO carry into execution the given to any
department or to the government o the United States
may by law devolvo that duty upon commission
upon any person. II do not STATE his position
reoty hope he will correct me.
Mr. EDMUNps-Mr President. II the Senator wishes
me 70 correct him now he states part OF my position
correctly, but he only states half OF IT. will take the
opportunity 70 correct him, as not to disturb HIM
ailerward
Mr. MoRroS-weli, Mr.. President / am stating tho
Senator's position correctly nd fully as understand
II, and understand this position OF his to bs
sary to another part Of his argument, because " the
power TO count the votes, which. believe, he OK
pressly declares 10 lodged in the two houses by the
constitution, and IL not general power to be executed
by law then this power must be exercised by the Two
houses only and cannot be- delegated; whereas, f is
simply duty imposed to count the votes, then Con-
gess may locate that duty wherever sees proper by
law.
The position OF the Senator Is that neither tho Presi
dent oil the Senate is vested with this power
the houses Of Congress; that neither
this brings then to very great fact winch Is that
for cighty-i years Presidents counted and
law The President Of the senate had no power
TO do it, because there was no Law authorizing him 10
do IT, The two houses had no power to do H. because
there was no law authorizing them TO do II. IL was
part OF the constitution which had not been cal RED
into operation by legislation. Now. sir is II true that
for cghty-iour years Presidents wcro counted aud in
augurated without authority OF awr That would be
very great discovery II II were true. II would show
that the men who made tho constitution did not
N IL. q
first President and all succeeding Presidents
wore counted in and naueuratcd according 10 law.
They may have been mistaken their opportunities for
knowing what the constitution Is were not good
ours, suppose. They undoubtedly believed that the
votes were properly counted Tor George Washington
John Adams, Thomas Jefferson and so ON. believe
that TINS power located somewhere that II IL does
not belong TO the President OF the Senate belongs 10
tho two houses II Is IN one place the other But
whatever may be the location in theory, that tho
houses cannot this power without legislation
think Is correct l think the Senator from Vermont
occupies sound position IN that respect and
whatever may say about the power OF Congress to
Iepisatc and considering that have done hereto
lore and have presented bills to the Chamber upon
that hypothesis heretofore yet that the absence OF
legislation tho President Of the Senate must count the
vocs that this results not from any theory, but
suits from necessity to prevent deadlock TO prevent
the government from coming 10 standstiil; that un-
til legislation has been had un der which the vote
be counted by tho two houses providing some rl-
bunal for It, the President OF the Senate must the
vote, and the vote was counted Tor sevcntywo years
upon that theory. Ii that theory not correct
then 1t unawully counted without authority, and
for threc.quarters OF century this government pro-
ceeded illegally.
Chapcelior Kent stated the law on this subject as
think 1t has been generally understood IN Congress
and out Of II until recently
The President Senate tho second Wednesday
February succeeding meeting the electors in the
ana the votes are then to b. coSnssd The eonsn
tion does expressly declare BY whom the votes be
able and closely contested election this power
sna the ps"Sss s s s
counts the votes ana the and that
and accuracy transaction and TO act only II
Now, conceding, Chancellor Kent seems to,
that there may be legislation the subject--a doc
trne to which have subscrbed-yet, in the absence
Of legislation the President OF the Senate must count
the votes prevent the government coming to hat,
aud he has counted the votes Tor eghtyfour years.
least Tor years. from 1859 until the time Of
tho adoption Of the second JOINT rule. do n
tend now TO into argument to the right oi the
President Of the senate TO count this vote against the
power OF Congress. l am simply stating what have
heretofore understood 10 be the general docrnethnt
IN the absence legislation the President Of Sem
ate must count tho vote that II now ail agree
upon a bill we should simply leave this question where
IL has been lett Tor eightyfour years. and that the
President OF the Senate in counting this vote
would be guilty of no greater usurpation than has
been guilty OF for three-quarters OF century. We
discussing this bill in tho presence Of case We arc
discussing In the presence OF actual condition OF
things shall be anxious to have ull bill adop,ed
was exceedingly anxious to agree with the committee
In the recommendation OF fair proposition. but whom
We are preparing bill in the presence of made
up, ready TO be tried, the paper all signed and In due
order insist that II shall be iar bill under which
As said before, believe Rutherford b. Hayes Is
elected President elected upon the papers, elected
rated, and that he must be tnauguraed. unless bill
shall be passed which shall allow HIM to be counted
In defiance OF the we'll settled principles ofiaw.
DELIGA1ISo THE POWER TO COUNT
question to-day as should like to do. wish ID say
few words in regard to this bill If the power to count
this vested the houses and nj the
President OF tho Seiiate then the duty must be
formco by the two houses. 1t cannot be delegated.
This the precise point, as understand IT, in tho
argument OF the Senator from Vermont because N he
we're to admit that the power vested in the two
houses under the constitution, he would be compelled
10 admit good lawyer he is that that power cannot
be delegated. But by placing II as a floating power
In tnas located nowhere until II Is located
right 10 deposit this power with commission. Tho
commission created is mixed commiss ion-partly IN
side and partly outsidehvs Senators, nve Represent
atives and i've judges. The judges taken not be-
cause they judges, not because they members
Of the Supreme Court. bat because they are mon of
eminent character who happen to occupy that posi-.
ton. Four OF them are chosen by circuits The SEN
ator from Vermont hardly did himself justice on
Saturday when hc argued that they were chosen by
circuits account o geographical distribution. They
were chosen by circuits, as understand II, not bc-
cause OF geographical distribution, but because of
the political antecedents o the men who preside in
these circuits. When the BILL instead OF naming the
judges names the circuits II presents harmless tlc
sham that deceivcs nobody Four judges taken by
the bill because OF their political antecedcnts-two on
each side. In other words, the four judges
lected upon political grounds equally divlded 1t is
said, In order to make the bill fair one Nevertheless
a selection is made in the Supreme Court on political
grounds II We are TO deal win the Supreme Court
and l confess l looked upon that proposition
with more favor than the other Il thought VIC ought
to have taken tho whole Court, aud not admit by
any form OF provision, that VIC believed politics en-
tered into the Court; not divide II up on political
grounds; not that the duties Of that Court
liable TO be influenced by their political preposses
sons but take the whole Court as court thought
that the least objectionable IL Is true the other day,
when there was constitutional amendment here rc.
fcrring this matter to The supreme Court voted
against IT,; but ] did SO chiefly because II
ro- o-enactcd an election Of the President by
the House of Representatives. by States. But
" TO take outside tribunal II
seemed mo far bette: that should take the Court
and take II as court-take all tho il dgcs and not
pick around among them to got an equal number
political grounds. thought that was u bow at the
Court add would do II more injury than any course
that could be taken. They are TO take nth; four
judges are to select nth. There Is very grave
question presented right at the threshold What the
character OF these commissioners? Are they officers?