Chapter XIV: Section 24: "And I can see no reason why a person, who, without (11)

In less than four years, in March 1792, after the first Congress had assembled there was legislation upon this subject, carrying into execution the power vested by this second article of the Constitution in a manner which will leave no doubt of what the men of that day believed was competent and proper. Here let me advert to that authority which must ever attach to the contemporaneous exposition of historical events. The men who sat in the Congress of 1792 had many of them been members of the convention that framed the Federal Constitution. All were its contemporaries and closely were they considering with master-minds the consequences of that work. Not only may we gather from the manner in which they treated this subject when they legislated upon it in 1792 what were their views of the powers of Congress on the subject of where the power was lodged and what was the proper measure of its exercise, but we can gather equally well from the inchoate and imperfect legislation of 1800 what those men also thought of their power over this subject, because, although differing as to details, there were certain conceded facts as to jurisdiction quite as emphatically expressed as if their propositions had been enacted into law. Likewise in 1824 the same instruction is afforded. If we find the Senate of the United States without division pass bills which, although not passed by the co-ordinate branch of Congress, are received by them and reported back from the proper committees after examination and without amendment to the committee of the whole House, we may learn with equal authority what was conceded by those houses as to the question of power over the subject. In a compilation made at the present session by order of the House Committee, co-ordinate with the Senate Committee, will be found at page 129 a debate containing expressions by the leading men of both parties in 1857 of the lawfulness of the exercise of the legislative power of Congress over this subject. I venture to read here from the remarks of Mr. Hunter, of Virginia, one of the most respected and conservative minds of his day in the Congress of the United States:--

The Constitution evidently contemplated a provision to be made by law to regulate the details and the mode of counting the votes for President and Vice-President of the United States. The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates, and the votes shall then be counted. By whom, and how to be counted, the Constitution does not say. But Congress has power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof. Congress, therefore, has the power to regulate by law the details of the mode in which the votes are to be counted. As yet, no such law has been found necessary. The cases, happily, have been rare in which difficulties have occurred in the count of the electoral votes. All difficulties of this sort have been managed heretofore by the consent of the two houses--a consent either implied at the time or declared by joint resolutions adopted by the houses on the recommendation of the joint committee which is usually raised to prescribe the mode in which the count is to be made. In the absence of law, the will of the two houses thus declared has prescribed the rule under which the President of the Senate and the tellers have acted. It was by this authority, as I understand it, that the President of the Senate acted yesterday. The joint resolution of the two bouses prescribed the mode in which the tellers were to make the count and also required him to declare the result, which he did. It was under the authority, therefore, and by the direction of the two houses that he acted. The resolutions by which the authority was given were according to unbroken usage and established precedent.

Mr. President, the debate from which I have read took place in 1857 and was long and able, the question there arising upon the proposed rejection of the vote of the State of Wisconsin, because of the delay of a single day in the meeting of the electors. A violent snowstorm having prevented the election on the third of December, it was held on the fourth, which was clearly in violation of the law of Congress passed in pursuance of the Constitution requiring that the votes for the electors should be cast on the same day throughout the Union. That debate will disclose the fact that the danger then became more and more realized of leaving this question unsettled as to who should determine whether the electoral votes of a State should be received or rejected when the two houses of Congress should differ upon that subject. There was no arbiter between them. This new-fangled idea of the present hour, that the presiding officer of the Senate should decide that question between the two disagreeing houses, had not yet been discovered in the fertility of political invention, or born perhaps of party necessity. The question has challenged all along through our country's history the ablest minds of the country; but at last we have reached a point when under increased difficulties we are bound to settle it. It arose in 1817 in the case of the State of Indiana, the question being whether Indiana was a State in the Union at the time of the casting of her vote. The two houses disagreed upon that subject; but by a joint resolution, which clearly assumed the power of controlling the subject, as the vote of Indiana did not if cast either way control the election, the difficulty was tided over by an arrangement for that time and that occasion only. In 1820 the case of the State of Missouri arose and contained the same question. There again came the difficulty when the genius and patriotism of Henry Clay were brought into requisition and a joint resolution introduced by him and adopted by both houses was productive of a satisfactory solution for the time being. The remedy was merely palliative; the permanent character of the difficulty was confessed and the fact that it was only a postponement to men of a future generation of a question still unsettled.

It is not necessary, and would be fatiguing to the Senate and to myself, to give anything like a sketch of the debate which followed, of the able and eminent men on both sides who considered the question, arriving, however, at one admitted conclusion, that the remedy was needed and that it did lie in the law-making power of the government to furnish it.

Thus, Mr. President, the unbroken line of precedent, the history of the usage of this government from 1789 at the first election of President and Vice-President until 1873, when the last count of electoral votes was made for the same offices, exhibits this fact, that the control of the count of the electoral votes, the ascertainment and declaration of the persons who were elected President and Vice-President, has been under the co-ordinate power of the two houses of Congress, and under no other power at any time or in any instance. The claim is now gravely made for the first time, in 1877, that in the event of disagreement of the two houses the power to count the electoral votes and decide upon their validity under the Constitution and law is vested in a single individual, an appointee of one of the houses of Congress, the presiding officer of the Senate. In the event of a disagreement between the two houses, we are now told, he is to assume the power, in his sole discretion, to count the vote, to ascertain and declare what persons have been elected; and this, too, in the face of an act of Congress, passed in 1792, unrepealed, always recognized, followed in every election from the time it was passed until the present day.