Year: 1877

'iNu az ~ Liz GOAobltutlOudA pIOpIAtl


OF Sech. legislation, the manner i
. which and the means by which he sha


exercise the power of Commander-in in


chief OF the army has been regulate


by law


1 CONGRESS AND THE SUPREME COURT


The Constitution of the Unite


States vests judicial power in one Su


preme Court and in such inferior court


as Congress from time to time may es


tablish, and yet one of the very frs


acts that Congress, under this Consti


tuition ever passed, was an act that reg


ulated and guided and controlled


from top to bottom, the exercise O


those powers that more clearly and ex


pressly delegate to that judicial branch


and no man ever suspected that Con
gress was exceeding its power in provi


ding by law for the means and way


of the performance of the great Judi


cial functions, those which least OF al


it would be safe for Republic, shoulC
it be unduly meddled with. So, Mr.
President, it does appear TO us, with
out my enlarging upon this branch o.


the discussion, and for the very few
reasons that | have so feebly stated


that the idea that this bill can be as
sailed as an unconstitutional measure
even it you say that the Constitution
has vested the power of performing the
executive or ministerial function oi
counting the votes, of which the Con
stitution says the person having the
greatest number shall be President, is
not at all maintainable. You have
only done in this bill what, in respect
to every other branch of the govern
ment and for all time, year by year,
you have been daily doing with the
acceptance of every body. 1t only
provides for ascertaining in lawful
and regular way what is the subject
upon which this executive function OF
counting the vote, finding out who has
the highest number, rests. 1t might
be contended with considerable force.
even if the duty, as far as have heard
itclaimed foryou, Mr. President, rested
IN that chair, that we have only fur
nished you the means Of justly per-
forming that duty; and they would be
true, unless it should be contended
that the Constitution had reposed in
you the functions of Congress and of
the Judiciary, to hear, try and deter
mine all questions of law and fact once
for all as in a given case, whether you
should be President of the United
States or not. IF the pretension goes
as far as that, of course, this bin is
against it. But if it only goes to the
point that you are to exercise com
manded ministerial duty Of counting a
vote then, upon the principles that L
have stated it would be entirely com
petent and the absolute duty of Con-
gress to provide you a means of find
ing out what is the vote you are to
count and compelling you as it does
courts, Presidents, everybody to fol-
low the judgment of whatever tribu-
nal should have ascertained that fact
for you because it is only an act which
you are to do, not decision that you
are torender. But, as [ have said, /
only intended, on this occasion, to ex-
plain in as brief way as | could ex-
actly what the bill is and in a general
way the grounds upon which it rests.
The illustrations that might be still
further made to show that this decid-
ing power, of which | am speaking does
not rest with you, and, as | think, to
show equally that it does not rest with
either House of Congress until Con-
gress provides law that allows it to
rest there, are so numerous that the
whole day might be spent upon them.


CONTEMPoRANEOU CONSTRUCTION.


There is one other topic which | will
only just allude to at this present time,
which, of course, bears upon it, and
that is what | called the contempora-
neous construction in such cases 1t
has been said by many persons and it
appears to be largely believed, if you
can take the statements of newspapers,
that for great many years the occu-
pant of your chair has, with the acqui-
escence of everybody, so constructed
the Constitution, and so it is implied
that that must be the true construc-
tion of the Constitution in the present
case, because for so many years, or
until a few years back-ffteen or
twenty, or whatever the time may be
it had always been done. If that
were true it would be entitled to weight
in the consideration of this question,
perhaps to great weight; but a mate
rial inquiry, as it is with all cases of
precedent, is to know whether it is
true to begin with. Now, | deny en-
pbatically that this is the history of
the practice under the Constitution
and when | say that, do not mean to
say that the President Of the Senate
has not counted the votes in the arith-
metical sense, although | suppose as
matter of fact that from the time of
John Langdon to that of Schuyler
Colfax the President of the Senate
never counted one of them. | will
take it for granted that as a matter of
law he did do the enumeration, al
though | suppose as a matter of truth
in every instance the tellers who sat at
the Clerks desk did all the counting.


THE FIRST FORTY YEARS.


What did take place for the frg
forty years of the Republic? There
never was an instance in which a paper
coming from a State under its great
seal, and certified by its Governor as
to who had been elected electors, or
the certificates of the electors them
selves as to how they had voted, was
ever drawn into question, and the thing
that the President of the Senate had
to deal with was exactly the sort of
thing that you had to deal with when
yesterday you laid before us, under the
great seal of the State Of Maine, the
credentials of a Senator, a public act
of that great State in condition of
peace and order, with only one govern
ment or pretended government, with
only one seal and with the universal
acquiesence of all parties, although
it is full of parties. The reign
of law had produced a result,
and there was nothing for you to
decide ifyou had the power of decision.
All that you had was to do, for the act
of 1866 says that the Governor of the
State shall certify to the President of
the Senate who has been elected.
Suppose you were to assume on such
set of papers as that that you had the
right to decide whether that was the
certificate of the Governor (and the
Constitution says pretty much the
same thing in this easel, would you
ever think of doing such thing? |
rather think not. But that is little
off what [ was saying about the prece-
dents. On the first occasion when the
language of the suggestion Of the Con-
stitutional Convention, in order to put
the government into force, the cleo
tors were recommended to send their


81