Year: 1877




Upon reassembling, Mr.. Bayard OelA
said he might perhaps be content as a
friend to this measure to allow it to &c be
fore the Senate and country unaccompan-
led by any remarks of his, had itnot been
the pleasure of the Senate to assign him.
as pne OF the minority in this chamber,to
a place upon the Select Committee to
frame bill to meet the exigencies of the
hour. Each party claimed success for its
candidate, and insisted that he should be
declared President by the two houses of
Congress. The canvass was bitter; but
the time for judgment had almost come.
1t could not be disguised that it had been
sought to raise an issue between the set
tiement OF this great question by sheer
iofce and arbitrary power, and the peace
ful way of law and reason. This was a
government of law and not of force, and
1t must not pass away. BY the measure
now before the Senate it was proposed to
have peaceful settlement of this Difficult
ty. This bill was meant to lit the great
question of determining who has been
| elected President and Vice-President of
the United States out of broils and tu-
mults and leave it in the higher atmos-
phere of judicial decision. He argued
that Congress had the power to regulate
Dy law the count of the electoral vote.
This new-fangled idea that the President
| OF the Senate had the right to count the
electoral vote had only lately been discov
| cred. MIR. Bayard then quoted at length
from the proceedings of the constitutional
convention to show the intention of the
trainers of our Constitution, and denied
the President of the Senate had the pow
| er to count the electoral vote. If the
trainers ofthe Constitution so intended,
how easy it would have been for them to
have said so. Such doctrine was con-
trary to the whole usage of the Govern
ment. The President of the Senate did
not summon the two houses of Congress
to witness his act of counting the vote,
but they summoned him to open the GER
tlficates in their presence. He then refer
red to the features of the pending bill l,and
said he was sorry to hear the Senator from


Ohio (Mr. Sherman) speak as he did in


regard to selecting the fifth Judge by


chance. Such remark was unjust to the


Senator who made it, unjust to the tribu-


nal upon which it reflected.


Bay Sherman said if the Senator (NIr.


Jud drd) would tell him that the fifth


he ge was not to be selected by chance
would take his word and with draw


any remarks he (Mr. Sherman) had made


in regard thereto. ~


Mr.. Bdydrd said the language of the


bill did not warrant tie Senator (Mr.


Sherman) in saying the Judge was to be


selected by chance; that he was to be


selected by gambling operation on the
! part Of the four judges designated. He
! then referred TO the Joint rule, and said


that under it, by will or caprice, any


State could be dsfranchised of its cleo


toral vote. The bill now before the Sen
! ate was not the product of any one mans


mind, but was the result of careful study
: and frequent amendment. His individual
opinions might lead him to object to the
,, employment of the judicial branch at all
to engrafting to any extent judicial powers


on the political branch of the Govern
ment, or rconfiding it to any question quasi
political, but his sense OF the general
+ value of the measure and the necessity OF
7 such a plan led him to its support. He


showed that Judge Nelson of the Supreme
Court, was nominated and confirmed as
one OF the High Joint Commission, that
Chief Justice Jay was sent as Minister TO
/, England to negotiate the treaty which
, bears his name; that Chlef-Justice Els


worth was sent as Minister to Spain, and
f that by law the Cnief-Justice of the Uni
ted States is President of the Board of
Regents Of the Smithsonian Institution.
1t was proper, safe and constitutional to
: = create the duty and to allow the power
! to assume it, and they were dealing with
men whose service was so high that there
4 could be no doubt for moment that they


would decline it. This bill was not, as
the Senator tiom Indiana Mr.. Mortonl
had argued, compromise. 1t only pro-


vided for an honest adjudication ofthe
rights of all. 1t was no compromise in
any sense, but was blending of opin-
: ions IN favor of truth and right in the alb
stract and in the concrete. But suppose


it was compromise. What was there
in a compromise that was disgraceful
, either to men or nations? The very charter
/ of the Government under which we live
was created in the spirit of compromise
, and mutual concession. Without this


spirit the Constitution would not have


been made, and without its continuance
; could not be maintained.