The Portland daily press. [volume] (Portland, Me.) 1862-1921, 1877-01-24
Forty Fourth Congressional Session
SENATE.


100000 to Jas. B. Fades, on account of the
construction of jettiss at the South Pass of
| the Mississippi river. The Secretary says that
he has received from the Secretary of War
requisition for the money, and he
respectfully recommends an appropriation of
100000 Immediately to pay said Eads, it not
being wise in the opinion of the Secretary to
increase the interest bearing debt of the United
States for the payment of current expenses
when there IS money in the treasury which can
ba appropriated for that purpose. Referred to
the Committee on Appropriations
After the presentation of several petitions
from fhlladelphIa, Plttsburg and ST. Louis,
taVorlng the compromise bill, that measure
was taken up for consideration.
MT. Sherman opposed the bill. He said
when the select committees were Amounted to
consider the subject he expected as a matter of
course to be able to vote for the bill reported
by the committee because he entertained the
highest respect for the members of that COM
mittee. 1t was painful for him to dissent from
the views OF men whom he esteemed so highly,
but after the brief examination he had gwen
the N easure be thought it was his duty to OPP
pose it, The bill was to make court to de-
eide case already made up and there were
provisions in it Incompatible with the constitu-
ton. Such law as this was an evil example
and 1t could not be sustained under the constI-
tuition. The questions heretofore discussed had
been: l. Shall the President of the Senate
count the votes? 2. Can either house admit
or exclude vote? 3. Can both houses con-
| curing do SO? 4 Can the Vice President de-
eide it the two houses disagreed This bill pre-
sents other questions of a greater aud more Sc
rious character. 1t CONTAINS four propositions:
1. That the President of the Senate has moth
| ing to do hut to preside and open the votes 2
Que House of Congress cannot reject a vote.
3. The two houses, by concurring vote, may
do so. 1t provides for grand commission,
the decision of which must be final unless over
ruled by the concurring vote of the two houses.
Mr. Sherman then argued that the bill Is un-
constitutional, and particularly opposed the
clause providing for the selection of five judges
| of the Supreme Court as members of the com.
| mission.
Mr.. Sherman then spoke at length as to the
powers and duties of the commission author
| lied by the bill and asked if it was to take the
returns as certified by state officers. If SO
l everybody knew who would be President, but
| if the commission was to be allowed to go back
| of the returns, God only knows what the result
| would be- 1t would depend entirely upon the
| last clause viii CHI settled TIE fifth judge of the
| Supreme Court who would be the fifteenth
| member of the commission.
Mr.. Thurman said this bill sent to the COM
| mission all questions of law as we'll as of fact
| how the commission would decide no one could
| tell.
Mr.. Sherman-No sir, that depends upon
chance.
He said the Senate was now asked to vote
| for this bill which substituted chance for the
vote of the electors given according to law.
| He contended that the bill entrusted to secret
| conclave the power to elect a President. 1t
| was college of cardinals for that purpose
While this commission would be in secret ses-
4 sion considering as to how the vote of Florida
must be counted, the votes of the great states
of New York, Ohio and Pennsy lvania would
remain uncOunted. The people would be in a
fever of excitement. The controversy wonld
be delayed because this very bill provided the
machinery for delay. He had no doubt the
| members of the commission would endeavor to
do their full duty, but this imposed upon them
impossible duties. Why was the power of the
| President of the Senate feared? Every act of
! his in counting the vote must be done in pub.
lie and would be closely watched, but by this
bill that power was given to a secret committee.
Suppose this high commission should reject
| the vote of state. it would be depriving a
state of its vote. Where was the clause in the
constitution comforting that power upon any
body. He submitted to the Senate that it was
best to count the vote as it had been counted
heretofore, as it had been counted % times dur.
ing the history OF the government. 1t was
high time that the extreme powers claimed for
Congress to reject the vote OF a state should be
| renounced, instead of affirmed as this bill pro-
posed.
Mr.. Stevenson Of Ky, denied that the com.
mission authorized by the bill was a secret con-
clave.
Mr. Sherman SAID the bill gave the commits
| sion the power to make its OVID rules. Every
| one knew it would be secret. He only ap-
proved of one feature of the bill and that was
that neither house had the right to reject the
electoral vote of a state. 1t was said that the
| country was in peril, aud would he do nothing
to save the country. Yes, he would obey the
law as it had existed since 1889 He was OPP
| posed to patching the laws and introducing in
to our electoral colleges the blind goddess of
| chance. Ii Tilden was elected, let him by all
| means enjoy the h0nors of the office, and if
| Hayes was elected all shonld yield him law
| ful obedience.
Mr.. Conkling said before reading the details
| of this measure or its advantages or merits the
Senate must make sure of the power in some
mode to subject the matter to the action of the
| two houses. study of the matter some years
ago convinced him of the right and the duty of
| Congress to ascertain and verify the electoral
votes and declare the result of the Presidential
election, or else b7 assertion the law making
| power to declare how these acts shall be done.
He argued tha4 the hill did not violate the con-
| stitution and spoke at some length In favor of
| its consttutiOualty. Referring to the power
| claimed for the President Of the Senate to
count the vote, Conkling argued that if the
trainers of the constitution had 50 intended
they would have said So The men who draft
| ed that instrument were masters of language
and they were so fastidious in this last and so
| exact that words should become the echo of
thought that they appointed committee on
| style in order that every sentence might be
scrutinzed. Mr.. Conkling denied that the
| power to count the vote was vested in the Pres
ident of the Senate, aud spoke at great length
| as to the intentions of the trainers of the con-
| stltutlon He asked, did reason or the fitness
| OF things inform us that our fathers intended
that the power to invaldate an electoral vote on
| an allegation of fraud or irregularity would be
| safer in one man than in the two houses of
Congress? Did reason suggest that our fathers
| would select one man to exercise this power
! who might be the sole judge in his own case, as
| it had occurred six times in the history of the
government?
| Mr.. Conkling then spoke of the objections to
the bill, and said if it was true that the right to
| count the vote was by the Constitution imposed
| on the President of the Senate the bill now up
Oh the table or any other bill, rule or plan
would be of the slightest efficacy or effect.
Wherever the Constitution deposited power
with any officer, department or functionary
there it must remain. If the Constitution de-
posted in the President of the Senate the
power to count the electoral vote there was an
end of it, and any act or rule to strip him of
that power would be bold intrusion upon the
Constitution. If sucn was the power of the
President of the Senate then every proceeding
had heretofore by the two Houses of Congress
was fragrant violation of the Constitution
1t had been said that the power of the Presi-
dent OF the Senate, though not expressed in the
Constitution, might be implied. He could not
accept that doctrine The authority to do a
ministerial act did not imply authority to do
judicial act. Had the President of the Senate
power to send for witnesses, call for kilograms
and lmprisOn persons unless they gave them
up. The Constt tuition had not endowed him
with the power to settle difficult problems. As
early as 1902 the state of Ohio had in it's funda-
mental law the very words of the Federal Con-
stituton that the presiding officer should open
the certificates and the votes should be counted.
Even at that early day it was the understand.
ing that the presiding officer merely opened the
certificates and the two houses proceeded to
count the vote.
To open the certificates was purely minis
terIal act, but to count the votes was something
more. The good certificates must be assorted
foom the bad ODes If New York sent 45 cleo
toral votes only 30 would be true votes and the
true ones must be taken from the false ones.
If the certificate from Massachusetts should
show that the state voted for the Democratic
candidate it would be false. The world knew
that she voted for the Republican nominee aud
must be SO counted. If the electors In one state
had voted for julius Caesar Che meant Julius
Caesar latn of Rome,) daughter or Henry the
Eighth, these votes would not be counted with
out inquiry.
He argued at some length in support of the
cOnstitutlonality of the bill, but at 40 an
nounced that be would not be able to conclude
his remarks, when Senate went into executive
session, Mr.. Eomunds giving notice that he
would call for vote tomorrow.
HOUSE