The Stark County Democrat. [volume] (Canton, Ohio) 1833-1912, 1877-02-15


er is vested in the Supreme Court OF the
United States, and does not say one woro
about arbitrators or the effect OF their
finding,
Sir, in my Judgment, the error into
which people have fallen in supposing
that the concur ence of both houses must
be necessary in order to count vote re-
suits Just as the error of my colleague.
submit, from treating thing of counting
an electoral vote as legislative act ana
one objection to this bill is found on that
misconception, l have seen It gravely
put in newspaper "Could Congress send
to this tribunal bill and agree before
hand that Just as the decision OF the tri;
bunal upon that bill should be, 1t should
be the law of the land unless both Houses
of Congress overruled it /" Yes, sir, as
absurd question as that has been put,
and have no doubt in real, downright
earnestness, utterly forgetting that the
assage of bill is a legislative act, no
part of which can be delegated, and that
no part of the power of Congress can In
any mode be granted away. The count.
ing ofthese votes is in its nature a judicial
act, and we have right to get all the ald
that is within our power to enable us to
perform that act wisely, and justly and
we'll. There is no analogy whatever be-
tween the sending of a bill to commls-
sion and sending an investigation OF these
facts to commission.
Now, sir, the first section of this bill
provides for a case in which there is but
one return from State, and provides that
that shall not be rejected without the
concurrent vote of both Houses, just as
the House of Representatives contended
in 1900; just as the Senate declared In
Mr.. Van Buren's bill in 1924; just as the
Senate, by considerable majority, de-
clared not nine months ago, upon the
bill of the Senator from Indiana, which
is the foundation of this bill which is the
bill we took up in committee and amend
ed and have reported to you.
If am right, then, in saying that it is
constitutional where there is but ore re-
turn, hink it is very easy to demon
strate that the second section of the bill
is likewise constitutional, and | beg the
attention of the Senators.to the very brief
argument have to make upon this ques-
ton and then will relieve them from
hearing me any further.
Why ought both houses to concur to re-
iect the vote where there is but one re-
turn? 1t is because every presumption
ought to be in favor of that single return
in order that the vote of the State may
not be lost, and it ought not to be reject
ed unless its illegality is so clear that the
concurring minds of both Houses shall
say 1--WE cannot receive that VOTE" 1t ID
a presumption necessary to preserve the
right of the State; it is presumption
necessary in order to do justice; and it is
a presumption so strong that. 1t would be
an absurdity in logic to say that it was
overthrown when one House said this is
a valid return and the other House said
"it is not" for that would be to give to
the House that denied its validity, pre-.
emnence over the House that asserted
its validity, and enable the one House
against the voice ofits co-equal in this de-
cision to override the presumption in IA
vor of the validity of the return. There
is no good logic in saving that one House
should have that power.
Then, sir we come to the case CT two
returns. That is different. There is no
presumption perhaps in favor of either OF
them, and that is what creates the
trouble. We have them here. We had
two returns from the State of Louisiana
at the very last count of the Presidential
votes. The official character of the cleo
tors in each list was certified by man
calling himself governor, and to each OF
them the seal OF the State was attached.
There may be in that case, there may be
in other cases, no presumption IN favor
of the one or the other.
What, then, does the second section OF
this bill do? 1t sends those returns to a
competent, able and impartial tribunal,
and says to that tribunal, Investigate
this subject; you have time to do it; Con-
gress has not; Congress must proceed
with its appropriation bills, and for Con-
gress to take the time to do what you are
direCte to, might consume all its time
and the government would fail for want
of means to carry it on"
Take this honest, learned impartial
tribunal, let them examine the case and
give us their judgment upon it, When
that judgment comes from a tribunal OF
this character in favor of one of these re-
turns, it creates presumption in its favor
that ought not be overthrown except by
the concurrent voice of the two Houses.
1t creates presumption in its favor as
strong, if not stronger, than that which
existed in favor of a single return, and
that is the philosophy of this bill. 1t is
the presumption in favor ofa return. So
as not to deprive any State of its vote,
that presumption which exists where
there is but one return, or that presump-
ton which is created by the decision of
this tribunal, shall not be overthrown
except by the concurrent voice of the two
Houses. But it is said, "Well, now that
is practically to leave it to the tribunal.
Nay, further, that is practically to leave
it to one man." Why, Mr.. President,
suppose it were left to this Senate alone,
might not he vote be 80 against 81, and
then would it not be the thirty sixth man
that settled itP Suppose you were to
leave it to five hundred and one men and
there were two hundred and fifty on one
side and two hundred and fifty one on
the other, might you not just as we'll say
it is the one man powerP Why, sir, there
is nothing in that at all
Nor does it initiate against the consti-
tutionality of this bill one particle that
in the present state of affairs-that is to
say, with two Houses having different
political majorities-practiCally the deci-
sion of that tribunal may settle the ques-
ton. That does not initiate against the
constitutionality of this bill in the slight
est degree. You might just as well say
that it would initiate against the consti-
tutionality of a law iIyou we're to provide
that a case involving a constitutional
question might be appealed from the
Court of Claims up to the Supreme Court.
1t might be said, "Why the practical
effect will be that. as the judges of the
Supreme Court are six republicans GER
tain and two democrats. and one that
cannot be counted, therefore, as matter
of course, the judgment will be in favor
of the republican Interpretation Of the