Year: 1877

the speech Of Mr.. Edmunds on intro
ducing the electoral bill into the Sen


ate. We could wish but for scarcity


of space to give the whole of his ar
gument. but select that portion which
relates to topics most disputed.


Senator Edmnnds is welIknown as a
Conservative Republican and one of
the most learned expounders of con-
stitutional law in the United States:


THE PRESIDENT OF THE SENATE.


Now I shall consider for few min
utes the preteDsioR-and do not use
that term to offend anybody, but as a
short one-the pretension that this
great and most responsible power is
devolved upon whoever occupies the
chair that you have so happily and so
honorably filled for so long time. [
dare say we could all agree that if the
| Constitution has reposed this deciding
power in that chair we could not wish
for better judge to fill the place; but
fit has not reposed it ia the occupant
Of your chair, sir, then no matter how
eminent or how learned the gentleman
may be who fills it, no matter how
completely he may command the re-
spect and confidence of all the people
of the United States of all parties, it
would be equally an invasion of the
best rights of constitutional govern
ment If he were to exercise it. The
| Constitution declares that the electors
Of the several States, who are recog-
| nized as officers, funetionaries, just as
clearly and with just as great import
ance as it does yours or ours, shall
seal up and certify and transmit to the
seat of the government of the United
States directed to the President of the
Senate, the certificates of the votes
which have been given for President.
Then it declares that the President of
the Senate shall, in the presence of
the Senate and House of Representa-
tives, open all the certificates and the
votes shall then be counted. You will
perceive, Mr.. President, that if the
makers of this Constitution had de-
signed to repose in the President of
the Senate the power to decide what
was a vote and to determine its dispo-
sition, as they had taken pains in every
part of the Constitution In the clearest
language to say what the Senate might
and might not do, what its powers
should be and those Of the House of
Representatives az they had taken
pains in the cleareSt way and with the
minutest carefulness of language to
say what powers the President of the
United States should exercise and what
powers should not be exercised by any
authority, and when Ia respect to the
judicial branch they had also, with the
same industrious diligence in confer
ring delegated powers, carefully emu
merated every power of the judiciary,
how unfortunate it was had they de-
signed to confer that power upon that
chair, that they had not used the two
word that would have enabled them
to do so. 1t would have saved vast
deal of dispute, and we can scarcely
imagine it possible that body of men,
who in every respect had been SO criti-
cally exact in the deyolujiOn of the
functions and powers of this govern
ment, should have remained by mere
accident, so silent upon perhaps the
most important part for the perpetuity
of the Republic IN peace, of any one
of the powers that the Constitution
created OF bestowed. I say, sir, that
it staggers human credulity; that if
that body of men had designed to turn
the President of the Senate into a
Judge in the most critical of all cases
for the we'll being of the Republic,
and in case where it is foTeseen, and
even known, that he himself would be
at first, and perhaps afterward, as it
happened, the very man who Fas to
profit or to lose byvhs decision. 1t
staggers human incTadulity that # they
had intended to repose such decided
power in that chair they should not
have said so.


WHAT THE CONSTITUTION DOES SAY.


But, after all, we must be governed
by what the Constitution does say, and
admit if you can imply from it fairly
and clearly that the power to open a
certificate implies the power to deter
mine upon the legal nature of its con-
tents when it is opened, then the Pres
ident of the Senate must have that
power, because the power is delegated
to him and to no one else to open all
the certificates. 1t then proceeds to
say that the votes shall be counted
which are disclosed by the opening of
the certificates. 1t does not say they
shall be counted by him. II it had
been intended that they should be
counted by him two words would have
said so, and two very short words at
that. But if it had said they should
be counted by him we should have
been great way yet from that funda-
mental and prior question as to what
is the legal nature of the thing that
he is to enumerate-to count, not to
decide. The judge in a tribunal de-
cides; the clerk counts. The language,
then, as everybody agrees, does not
say that the President of the Senate
shall have the power to count, even in
the arithmetical sense of the term;
much less does it say that he shall
have power to decide anything. 1t
says that he shall open all the certifi-
Gates. Now suppose we go back lit
tie and inquire, does that imply it?
suppose that everybody will admit that
the power to open does not necessarily
imply power to count, because it is
not necessary to countin order to open,
and an implied power only arises when
it is necessary that the so-called i'm
piled power should be exercised In or
der to the performance of the power
that is given. The power that is given
by the:words of the Constitution is the
power to ''open."


COUNTING AND OPENING.


Now the power to count is not es-
sential to the power to open. You can
open without counting. IF the langu-
age had been reversed, and it had said
that the President of the Senate should
count these votes, the certificates be-
ing sent to him, of course the implica-
ton would have arisen that he must
open the certificates, because he could
not count them until he did open them.
But it happens that the language is
exactly the other way. He shall open
them and then the counting shall take
place without stating by whom in
terms. Those who contend that it is
On implied power from the power to
open must show by inevitable logic
that the power to do the first thing
being granted it necessarily follows
that the power to do the second is
covered by implication. In short, that
the power to do one thing implies the
power to do two. | have not been able
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