Chapter XV: Section 5: of the act of 1792 declares (1)

That Congress shall be in session on the second Wednesday in February 1793, and on the second Wednesday in February succeeding every meeting of the electors; and the said certificates, or so many of them as shall have been received, shall then be opened, the votes counted, and the persons who shall fill the offices of President and Vice-President ascertained and declared agreeably to the Constitution.

Let it be noted that the words "President of the Senate" nowhere occur in the section.

But we are now told that though "Congress shall be in session," that though these two great bodies duly organized, each with its presiding officer, accompanied by all its other officers, shall meet to perform the duty of ascertaining and declaring the true result of the action of the electoral colleges and what persons are entitled to these high executive offices, in case they shall not agree in their decisions there shall be interposed the power of the presiding officer of one of the houses to control the judgment of either and become the arbiter between them. Why, Mr. President, how such a claim can be supposed to rest upon authority is more than I can imagine. It is against all history. It is against the meaning of laws. It is not consistent with the language of the Constitution. It is in the clearest violation of the whole scheme of this popular government of ours, that one man should assume a power in regard to which the convention hung for months undecided, and carefully and grudgingly bestowing that power even when they finally disposed of it. Why, sir, a short review of history will clearly show how it was that the presiding officer of the Senate became even the custodian of the certificates of the electors.

On the fourth of September, 1787, when approaching the close of their labors, the convention discovered that they must remove this obstacle, and they must come to an agreement in regard to the deposit of this grave power. When they were scrupulously considering that no undue grant of power should be made to either branch of Congress, and when no one dreamed of putting it in the power of a single hand, the proposition was made by Hon. Mr. Brearly, from a committee of eleven, of alterations in the former schemes of the convention, which embraced this subject. It provided:--

5. Each State shall appoint, in such manner as its legislature may direct a number of electors equal to the whole number of Senators and Members of the House of Representatives to which the State may be entitled in the legislature.

6. The electors shall meet in their respective States and vote by ballot for two persons, one of whom at least shall not be an inhabitant of the same State with themselves; and they shall make a list of all the persons voted for, and of the number of votes for each, which list they shall sign and certify, and transmit sealed to the seat of the general government, directed to the President of the Senate.

7. The President of the Senate shall, in that house, open all the certificates; and the votes shall be then and there counted. The person having the greatest number of votes shall be the President, if such number shall be a majority of the whole number of the electors appointed; and if there be more than one who have such majority and have an equal number of votes, then the Senate shall choose by ballot one of them for President; but if no person have a majority, then from the five highest on the list the Senate shall choose by ballot the President. And in every case after the choice of the President the person having the greatest number of votes shall be Vice-President. But if there should remain two or more who shall equal votes, the Senate shall choose from them the Vice-President. (See 'Madison Papers.' page 506. etc.)

Here we discover the reason why the President of the Senate was made the custodian of these certificates. It was because in that plan of the Constitution the Senate was to count the votes alone; the House was not to be present; and in case there was a tie or failure to find a majority the Senate was to elect the President and Vice-President. The presiding officer of the body that was to count the votes alone, of the body that alone was to elect the President in default of a majority--the presiding officer of that body was naturally the proper person to hold the certificates until the Senate should do its duty. It might as well be said that because certificates and papers of various kinds are directed to the President of this Senate to be laid before the Senate that he should have the control to enact those propositions into law, as to say that because the certificates of these votes were handed to him he should have the right to count them and ascertain and declare what persons had been chosen President and Vice-President of the United States.

But the scheme reported by Mr. Brearly met with no favor. In the first place, it was moved and seconded to insert the words "in the presence of the Senate and House of Representatives" after the word "counted." That was passed in the affirmative. Next it was moved to strike out the words "the Senate shall immediately choose by ballot" and insert the words "and House of Representatives shall immediately choose by ballot one of them for President, and the members of each State shall have one vote," and this was adopted by ten States in the affirmative to one State in the negative.

Then came another motion to agree to the following paragraph, giving to the Senate the right to choose the Vice-President in case of the failure to find a majority, which was agreed to by the convention; so that the amendment as agreed to read as follows:--

The President of the Senate, in the presence of the Senate and House of Representatives, shall open all the certificates, and the votes shall then be counted. The person having the greatest number of votes shall be President, if such number be a majority of the whole number of electors appointed: and if there be more than one who have such majority, and have an equal number of votes, then the House of Representatives shall immediately choose by ballot one of them for President, the representation from each State having one vote; but if no person have a majority, then from the five highest on the list the House of Representatives shall in like manner choose by ballot the President.

And then follows that if there should remain two candidates voted for as Vice-President having an equal vote the Senate shall choose from them the Vice-President. Mr. President, is it not clear that the Constitution directed that the certificates should be deposited with the presiding officer of that body which was alone to count the votes and elect both the President and Vice-President in case there was a failure to find a majority of the whole number of electors appointed? There is a maxim of the law, that where the reason ceases the law itself ceases. It is not only a maxim of common law, but equally of common sense. The history of the manner in which and the reason for which the certificates were forwarded to the President of the Senate completely explains why he was chosen as the depositary and just what connection he had with and power over those certificates. After the power had been vested in the House of Representatives to ballot for the President, voting by States, after the presence of the House of Representatives was made equally necessary before the count could begin or proceed at all, the President of the Senate was still left as the officer designated to receive the votes. Why? Because the Senate is a continuing body, because the Senate always has a quorum. Divided into three classes, there never is a day or a time when a quorum of the Senate of the United States is not elected and cannot be summoned to perform its functions under the Constitution. Therefore you had the officer of a continuing body, and as the body over which he presided and by whom he is chosen was one of the two co-ordinate bodies to perform the great function of counting the votes and of ascertaining and declaring the result of the electoral vote, he was left in charge of the certificates.

You also find in the sixth section of the act of 1792 that Congress exercised its regulating power and declared "that in case there shall be no President of the Senate at the seat of government on the arrival of the persons intrusted with the lists of votes of the electors, then such persons shall deliver the lists of votes in their custody into the office of the Secretary of State to be safely kept and delivered over as soon as may be to the President of the Senate."

What does this signify? That it was a simple question of custody, of safe and convenient custody, and there is just as much reason to say that the Secretary of State being the recipient of those votes had a right to count them as to say that the other officer designated as the recipient of the votes, the President of the Senate, had a right to count them.

Now, here is another fact a denial of which cannot be safely challenged. Take the history of these debates upon the formation of the Federal Constitution from beginning to end, search them, and no line or word can be discovered that even suggests any power whatever in any one man over the subject, much less in the President of the Senate, in the control of the election of the President or the Vice-President. Why, sir, there is the invariable rule of construction in regard to which there can be no dispute, that the express grant of one thing excludes any other. Here you have the direction to the President of the Senate that be shall receive these certificates, or if absent that another custodian shall receive them, hold them during his absence and pass them over to him as soon as may be, and that then he shall in the presence of the two houses of Congress "open all the certificates." There is his full measure of duty; it is clearly expressed; and then after that follows the totally distinct duty, not confided to him, that "the votes shall then be counted."

I doubt very much whether any instrument not written by an inspired hand was more clear, terse, frugal of all words except those necessary to express its precise meaning, than the Constitution of the United States. It would require the greatest ingenuity to discover where fewer words could be used to accomplish a plain end. How shall it be that in this closely considered charter, where every word, every punctuation was carefully weighed and canvassed, they should employ seven words out of place when two words in place would have fulfilled their end? If it had been intended to give this officer the power to count, how easy to read, "The President of the Senate shall, in the presence of the Senate and House of Representatives, open and count the votes." Why resort to this other, strained, awkward, ungrammatical, unreasonable transposition of additional words to grant one power distinctly and leave the other to be grafted upon it by an unjust implication? No, Mr. President, if it were a deed of bargain and sale, or any question of private grant, if it did not touch the rights of a great people, there would be but one construction given to this language, that the expression of one grant excluded the other. It was a single command to the President of the Senate that, as the custodian, he should honestly open those certificates and lay them before the two houses of Congress who were to act, and then his duty was done, and that was the belief of the men who sat in that convention, many of whom joined in framing the law of 1792 which directed Congress to be in session on a certain day and that the votes should be counted and the persons who should fill the office of President and Vice-president ascertained and declared agreeably to the Constitution.

The certificates are to be opened by their custodian, the President of the Senate, in the presence of the Senate and the House of Representatives. Let it be noted this is not in the presence of the Senators and Representatives, but it is in the presence of two organized bodies who cannot be present except as a Senate and as a House of Representatives, each with its own organization, its own presiding officer and all adjuncts, each organized for the performance of a great duty.

When the first drafts of the Constitution were made, instead of saying "in the presence of the Senate and the House of Representatives," they called it "the Legislature." What is a Legislature? A law-making body organized, not a mob, but an organized body to make laws; and so the law-making power of this Union, consisting of these two houses, is brought together. But it seems to me a most unreasonable proposition to withhold from the law-making power of this government the authority to regulate this subject and yet be willing to intrust it to a single hand. There is not a theory of this government that will support such a construction. It is contrary to the whole genius of the government; it is contrary to everything in the history of the formation of the government; it is contrary to the usage of the government since its foundation.

The President of the Senate is commanded by the Constitution to open the votes in the presence of the two houses. He does not summon them to witness his act, but they summon him by appointing a day and hour when he is to produce and open in their presence all the certificates he may have received, and only then and in their presence can he undertake to open them at all. If he was merely to summon them as witnesses of his act it would have been so stated. But when did the President of the Senate ever undertake to call the two houses together to witness the opening and counting of the votes? No, sir; he is called at their will and pleasure to bring with him the certificates which he has received, and open them before them and under their inspection, and not his own. When the certificates have been opened, when the votes have been counted, can the President of the Senate declare the result? No, sir, he has never declared a result except as the mouthpiece and the organ of the two houses authorizing and directing him what to declare, and what he did declare was what they had ascertained and in which ascertainment he had never interfered by word or act.

Suppose there shall be an interruption in the count, as has occurred in our history, can the President of the Senate do it? Did he ever do it? Is such an instance to be found? Every interruption in the count comes from some Member of the House or of the Senate, and upon that the pleasure of the two houses is considered, the question put to them to withdraw if they desire, and the count is arrested until they shall order it to recommence. The proceeding in the count, the commencement of the count is not in any degree under his control. It is and ever was in the two houses, and in them alone. They are not powerless spectators; they do not sit "state statues only," but they are met as a legislature in organized bodies to insure a correct result of the popular election, to see to it that "the votes shall then be counted" agreeably to the Constitution.

In 1792 when some of the men who sat in the convention that framed the Constitution enacted into law the powers given in relation to the count of the electoral votes, they said, as I have read, that the certificates then received shall be opened and the votes counted, "and the persons to fill the offices of President and Vice-President ascertained agreeably to the Constitution," and that direction is contained in the same section of the law that commands Congress to be in session on that day. It is the law-making power of the nation, the legislature, that is to perform this solemn and important duty, and not a single person who is selected by one branch of Congress and who is removable at their will, according to a late decision of the Senate.

Yes, Mr. President, the power contended for by some Senators, that the President of the Senate can, in the contingency of a disagreement between the two houses, from the necessity of the case, open and count the vote, leads to this: that upon every disputed vote and upon every decision a new President of the Senate could be elected; that one man could be selected in the present case to count the vote of Florida; another, of South Carolina; another, of Oregon; another, of Louisiana; and the Senate could fill those four offices with four different men, each chosen for that purpose, and when that purpose was over to be displaced by the same breath that set them up for the time being.

Now, sir, if, as has been claimed, the power of counting the votes is deposited equally in both houses, does not this admission exclude the idea of any power to count the votes being deposited in the presiding officer of one of those houses, who is, as I say, eligible and removable by a bare majority of the Senate, and at will? If the presiding officer of the Senate can thus count the vote, the Senate can control him. Then the Senate can control the count and, the Senate appointing their President, become the sole controllers of the vote in case of disagreement. What then becomes of the equal measure of power in the two houses over this subject? If the power may be said to exist only in case of disagreement, and then _ex_ _necessitate_ _rei_, all that remains for the Senate is to disagree, and they themselves have created the very contingency that gives them the power, through their President to have the vote counted or not counted, as they may desire. Why, sir, such a statement destroys all idea of equality of power between the two houses in regard to this subject.

When the President of the Senate has opened the certificates and handed them over to the tellers of the two houses, in the presence of the two houses, his functions and powers have ended. He cannot repossess himself of those certificates or papers. He can no longer control their custody. They are then and thereafter in the possession and under the control of the two houses who shall alone dispose of them.

Why, sir, what a spectacle would it be, some ambitious and unscrupulous man the presiding officer of the Senate, as was once Aaron Burr, assuming the power to order the tellers to count the vote of this State and reject the vote of that, and so boldly and shamelessly reverse the action of the people expressed at the polls, and step into the presidency by force of his own decision. Sir, this is a reduction of the thing to an absurdity never dreamed of until now, and impossible while this shall remain a free government of law.

Now, Mr. President, as to the measure before us a few words. It will be observed that this bill is enacted for the present year, and no longer.

This is no answer to an alleged want of constitutional power to pass it, but it is an answer in great degree where the mere policy and temporary convenience of the act are to be considered.

In the first place, the bill gives to each house of Congress equal power over the question of counting, at every stage.

It preserves intact the prerogatives, under the Constitution, of each house.

It excludes any possibility of judicial determination by the presiding officer of the Senate upon the reception and exclusion of a vote.

The certificates of the electoral colleges will be placed in the possession and subject to the disposition of both houses of Congress in joint session.

The two houses are co-ordinate and separate and distinct. Neither can dominate the other. They are to ascertain whether the electors have been validly appointed, and whether they have validly performed their duties as electors. The two houses must, under the act of 1792, "ascertain and declare" whether there has been a valid election, according to the Constitution and laws of the United States. The votes of the electors and the declaration of the result by the two houses give a valid title, and nothing else can, unless no majority has been disclosed by the count; in which case the duty of the House is to be performed by electing a President, and of the Senate by electing a Vice-President.

If it be the duty of the two houses "to ascertain" whether the action of the electors has been in accordance with the Constitution, they must inquire. They exercise supervisory power over every branch of public administration and over the electors. The methods they choose to employ in coming to a decision are such as the two houses, acting separately or together, may lawfully employ. Sir, the grant of power to the commission is in just that measure, no more and no less. The decision they render can be overruled by the concurrent votes of the two houses. Is it not competent for the two houses of Congress to agree that a concurrent majority of the two houses is necessary to reject the electoral vote of a State? If so, may they not adopt means which they believe will tend to produce a concurrence? Finally, sir, this bill secures the great object for which the two houses were brought together: the counting of the votes of the electoral college; not to elect a President by the two houses, but to determine who has been elected agreeably to the Constitution and the laws. It provides against the failure to count the electoral vote of a State in event of disagreement between the two houses, in case of single returns, and, in cases of contest and double returns, furnishes a tribunal whose composition secures a decision of the question in disagreement, and whose perfect justice and impartiality cannot be gainsaid or doubted.

The tribunal is carved out of the body of the Senate and out of the body of the House by their vote _viva_ _voce_. No man can sit upon it from either branch without the choice, openly made, by a majority of the body of which he is a member, that he shall go there. The five judges who are chosen are from the court of last resort in this country, men eminent for learning, selected for their places because of the virtues and the capacities that fit them for this high station. ... Mr. President, objection has been made to the employment of the commission at all, to the creation of this committee of five senators, five representatives, and five judges of the Supreme Court, and the reasons for the objection have not been distinctly stated. The reasons for the appointment I will dwell upon briefly.

Sir, how has the count of the vote of every President and Vice-President, from the time of George Washington and John Adams, in 1789, to the present day, been made? Always and without exception by tellers appointed by the two houses. This is without exception, even in the much commented case of Mr. John Langdon, who, before the government was in operation, upon the recommendation of the constitutional convention, was appointed by the Senate its President, for the sole purpose of opening and counting these votes. He did it, as did every successor to him, under the motion and authority of the two houses of Congress, who appointed their own agents, called tellers to conduct the count, and whose count, being reported to him, was by him declared.

From 1793 to 1865 the count of votes was conducted under concurrent resolutions of the two houses, appointing their respective committees to join "in ascertaining and reporting a mode of examining the votes for President and Vice-President."

The respective committees reported resolutions fixing the time and place for the assembling of the two houses, and appointing tellers to conduct the examination on the part of each house respectively.

Mr. President, the office of teller, or the word "teller," is unknown to the Constitution, and yet each house has appointed tellers, and has acted upon their report, as I have said, from the very foundation of the government. The present commission is more elaborate, but its objects and its purposes are the same, the information and instruction of the two houses who have a precisely equal share in its creation and organization; they are the instrumentalities of the two houses for performing the high constitutional duty of ascertaining whom the electors in the several States have duly chosen President and Vice-President of the United States. Whatever is the jurisdiction and power of the two houses of Congress over the votes, and the judgment of either reception or rejection, is by this law wholly conferred upon this commission of fifteen. The bill presented does not define what that jurisdiction and power is, but it leaves it all as it is, adding nothing, subtracting nothing. Just what power the Senate by itself, or the House by itself, or the Senate and the House acting together, have over the subject of counting, admitting, or rejecting an electoral vote, in case of double returns from the same State, that power is by this act, no more and no less, vested in the commission of fifteen men; reserving, however, to the two houses the power of overruling the decision of the commission by their concurrent action.

The delegation to masters in chancery of the consideration and adjustments of questions of mingled law and fact is a matter of familiar and daily occurrence in the courts of the States and of the United States.

The circuit court of the United States is composed of the district judge and the circuit judge, and the report to them of a master is affirmed unless both judges concur in overruling it.

Under the present bill the decision of the commission will stand unless overruled by the concurrent votes of the two houses. I do not propose to follow the example which has been set here in the Senate by some of the advocates as well as the opponents of this measure, and discuss what construction is to be given and what definition may be applied or ought to be applied in the exercise of this power by the commission under this law. Let me read the bill:--

All the certificates and papers purporting to be certificates of the electoral votes of each State shall be opened, in the alphabetical order of the States, as provided in Section 1 of this act; and when there shall be more than one such certificate or paper, as the certificates and papers from such State shall so be opened (excepting duplicates of the same return), they shall be read by the tellers, and thereupon the President of the Senate shall call for objections, if any. Every objection shall be made in writing, and shall state clearly and concisely, and without argument, the ground thereof, and shall be signed by at least one Senator and one Member of the House of Representatives before the same shall be received. When all such objections so made to any certificate, vote, or paper from a State shall have been received and read, all such certificates, votes, and papers so objected to, and all papers accompanying the same, together with such objections, shall be forthwith submitted to said commission, which shall proceed to consider the same, with the same powers, if any, now possessed for that purpose by the two houses acting separately or together, and, by a majority of votes, decide whether any and what votes from such States are the votes provided for by the Constitution of the United States, and how many and what persons were duly appointed electors in such State, and may therein take into view such petitions, depositions, and other papers, if any, as shall, by the Constitution and now existing law, be competent and pertinent in such consideration: which decision shall be made in writing.

It will be observed that all the questions to be decided by this commission are to be contained in the written objections. Until those objections are read and filed, their contents must be unknown, and the issues raised by them undescribed. But whatever they are, they are submitted to the decision of the commission. The duty of interpreting this law and of giving a construction to the Constitution and existing laws is vested in the commission; and I hold that we have no right or power to control in advance, by our construction, their sworn judgment as to the matters which they are to decide. We would defeat the very object of the bill should we invade the essential power of judgment of this commission and establish a construction in advance and bind them to it. It would, in effect, be giving to them a mere mock power to decide by leaving them nothing to decide.

Mr. President, there are certainly very good reasons why the concurrent action of both houses should be necessary to reject a vote. It is that feature of this bill which has my heartiest concurrence; for I will frankly say that the difficulties which have oppressed me most in considering this question a year or more ago, before any method had been devised, arose from my apprehensions of the continued absorption of undue power over the affairs of the States; and I here declare that the power and the sole power of appointing the electors is in the State, and nowhere else. The power of ascertaining whether the State has executed that power justly and according to the Constitution and laws is the duty which is cast upon the two houses of Congress. Now, if, under the guise or pretext of judging of the regularity of the action of a State or its electors, the Congress or either house may interpose the will of its members in opposition to the will of the State, the act will be one of usurpation and wrong, although I do not see where is the tribunal to arrest and punish it except the great tribunal of an honest public opinion. But sir that tribunal, though great, though in the end certain, is yet ofttimes slow to be awakened to action; and therefore I rejoice when the two houses agree that neither of them shall be able to reject the vote of a State which is without contest arising within that State itself, but that the action of both shall be necessary to concur in the rejection.

If either house may reject, or by dissenting cause a rejection, then it is in the power of either house to overthrow the electoral colleges or the popular vote, and throw the election upon the House of Representatives. This, it is clear to me, cannot be lawfully done unless no candidate has received a majority of the votes of all the electors appointed. The sworn duty is to ascertain what persons have been chosen by the electors, and not to elect by Congress.

It may be said that the Senate would not be apt to throw the election into the House. Not so, Mr. President; look at the relative majorities of the two houses of Congress as they will be after the fourth of March next. It is true there will be a numerical majority of the members of the Democratic party in the House of Representatives, but the States represented will have a majority as States of the Republican party. If the choice were to be made after March 4th, then a Republican Senate, by rejecting or refusing to count votes, could of its own motion throw the election into the House; which, voting by States, would be in political accord with the Senate. The House of Representatives, like the present House in its political complexion, composed of a numerical majority, and having also a majority of the States of the same party, would have the power then to draw the election into its own hands. Mr. President, either of these powers would be utterly dangerous and in defeat of the object and intent of the constitutional provisions on this subject.

Sir, this was my chief objection to the twenty-second joint rule. Under that rule either house of Congress, without debate, without law, without reason, without justice, could, by the sheer exercise of its will or its caprice, disfranchise any State in the electoral college. Under that rule we lived and held three presidential elections.

In January 1873, under a resolution introduced by the honorable Senator from Ohio [Mr. Sherman] and adopted by the Senate, the Committee on Privileges and Elections, presided over by the honorable Senator from Indiana [Mr Morton], proceeded to investigate the elections held in the States of Louisiana and Arkansas, and inquired whether these elections had been held in accordance with the Constitution and laws of the United States and the laws of said States, and sent for persons and papers and made thorough investigation, which resulted in excluding the electoral votes of Louisiana from the count, (See Report No. 417, third session Forty-Second Congress.)

The popular vote was then cast, and it was cast at the mercy of a majority in either branch of Congress, who claimed the right to annul it by casting out States until they should throw the election into a Republican House of Representatives. I saw that dangerous power then, and, because I saw it then, am I so blind, am I so without principle in my action, that I should ask for myself a dangerous power that I refused to those who differ from me in opinion? God forbid.

This concurrence of the two houses to reject the electoral votes of a State was the great feature that John Marshall sought for in 1800. The Senate then proposed that either house should have power to reject a vote. The House of Representatives, under the lead of John Marshall, declared that they should concur to reject the vote, and upon that difference of opinion the measure fell and was never revived. In 1824 the bill prepared by Mr. Van Buren contained the same wholesome principle and provided that the two houses must concur in the rejection of a vote. Mr. Van Buren reported this bill in 1824. It was amended and passed, and, as far as I can find from the record, without a division of the Senate. It was referred in the House of Representatives to the Committee on the Judiciary, and it was reported back by Mr. Daniel Webster, without amendment, to the Committee of the Whole House, showing their approval of the bill; and that principle is thoroughly incorporated in the present measure and gives to me one of the strong reasons for my approval.

Mr. President, this bill is not the product of any one man's mind, but it is the result of careful study and frequent amendment. Mutual concessions, modifications of individual preferences, were constantly and necessarily made in the course of framing such a measure as it now stands. My individual opinions might lead me to object to the employment of the judicial branch at all, of ingrafting even to any extent political power upon the judicial branch or its members, or confiding to them any question even quasi-political in its character. To this I have expressed and still have disinclination, but my sense of the general value of this measure and the necessity for the adoption of a plan outweighed my disposition to insist upon my own preferences as to this feature. At first I was disposed to question the constitutional power to call in the five justices of the Supreme Court, but the duty of ascertaining what are the votes, the true votes, under the Constitution, having been imposed upon the commission, the methods were necessarily discretionary with the two houses. Any and every aid that intelligence and skill combined can furnish may be justly used when it is appropriate to the end in view.

Why, sir, the members of the Supreme Court have in the history of this country been employed in public service entirely distinct from judicial function. Here lately the treaty of Washington was negotiated by a member of the Supreme Court of the United States; the venerable and learned Mr. Justice Nelson, of New York, was nominated by the President and confirmed by the Senate as one of the Joint High Commission. Chief-Justice Jay was sent in 1794, while he was chief-justice of the United States, as minister plenipotentiary to England, and negotiated a treaty of permanent value and importance to both countries. He was holding court in the city of Philadelphia at the time that he was nominated and confirmed, as is found by reference to his biography, and--

Without vacating his seat upon the bench he went to England, negotiated the treaty which has since borne his name, and returned to this country in the spring of the following year.

His successor was Chief-Justice Rutledge, and the next to him was Chief-Justice Oliver Ellsworth. He, while holding the high place of chief-justice, was nominated and confirmed as minister plenipotentiary to Spain. By a law of Congress the chief-justice of the United States is _ex_ _officio_ the president of the Board of Regents of the Smithsonian Institution.

Mr. Morton--I should like to ask the Senator, if it does not interrupt him, whether he regards the five judges acting on this commission as acting in their character as judges of the Supreme Court, if that is their official character, and that this bill simply enlarges their jurisdiction in that respect?

Mr. Bayard--Certainly not, Mr. President. They are not acting as judges of the Supreme Court, and their powers and their jurisdiction as judges of the Supreme Court are not in any degree involved; they are simply performing functions under the government not inconsistent, by the Constitution, or the law, or the policy of the law, with the stations which they now hold. So I hold that the employment of one or more of the Supreme Court judges in the matter under discussion was appropriate legislation. We have early and high authority in the majorities in both House and Senate in the bill of 1800, in both of which houses a bill was passed creating a commission similar to that proposed by this bill and calling in the chief-justice of the United States as the chairman of the grand committee, as they called it then, a commission as we term it now.

As has been said before, many of the Senators and members of the Congress of 1800 had taken part in the convention that framed the Constitution, and all were its contemporaries, and one of the chief actors in the proceedings on the part of the House of Representatives was John Marshall, of Virginia, who one year afterward became the chief-justice of the United States, whose judicial interpretations have since that time clad the skeleton of the Constitution with muscles of robust power. Is it not safe to abide by such examples? And I could name many more, and some to whom my respect is due for other and personal reasons.

In the debate of 1817, in the case of the disputed vote of Indiana; in 1820, in the case of Missouri; and again in 1857, in the case of Wisconsin, I find an array of constitutional lawyers who took part in those debates, among them the most distinguished members of both political parties, concurring in the opinion that by appropriate legislation all causes of dispute on this all-important matter of counting the electoral vote could be and ought to be adjusted satisfactorily. Why, sir, even the dictum of Chancellor Kent, that has been read here with so much apparent confidence by the honorable Senator from Indiana, is itself expressed to be his opinion of the law "in the absence of legislation on the subject."

Mr. President, there were other objections to this bill; one by the honorable Senator from Indiana. He denounced it as "a compromise." I have gone over its features and I have failed to discover, nor has the fact yet been stated in my hearing, wherein anything is compromised. What power of the Senate is relinquished? What power of the House is relinquished? What power that both should possess is withheld? I do not know where the compromise can be, what principle is surrendered. This bill intends to compromise nothing in the way of principle, to compromise no right, but to provide an honest adjudication for the rights of all. Where is it unjust? Whose rights are endangered by it? Who can foretell the judgment of this commission upon any question of law or fact? Sir, there is no compromise in any sense of the word, but there is a blending of feeling, a blending of opinions in favor of right and justice.

But, sir, if it were a compromise, what is there in compromise that is discreditable either to men or to nations? This very charter of government under which we live was created in a spirit of compromise and mutual concession. Without that spirit it never would have been made, and without a continuance of that spirit it will not be prolonged. Sir, when the Committee on Style and Revision of the Federal convention of 1787 had prepared a digest of their plan, they reported a letter to accompany the plan to Congress, from which I take these words as being most applicable to the bill under consideration:--

And thus the Constitution which we now present is the result of a spirit of amity and of that mutual deference and concession which the peculiarity of our political situation rendered indispensable.

The language of that letter may well be applied to the present measure; and had the words been recalled to my memory before the report was framed I cannot doubt that they would have been adopted as part of it to be sent here to the Senate as descriptive of the spirit and of the object with which the committee had acted.

But, sir, the honorable Senator also stated, as a matter deterring us from our proper action on this bill, that the shadow of intimidation had entered the halls of Congress, and that members of this committee had joined in this report and presented this bill under actual fear of personal violence. Such a statement seems to me almost incredible. I may not read other men's hearts and know what they have felt, nor can I measure the apprehension of personal danger felt by the honorable Senator. It seems to me incredible. Fear, if I had it, had been the fear of doing wrong in this great juncture of public affairs, not the fear of the consequences of doing right. Had there been this intimidation tenfold repeated to which the Senator has alluded, and of which I have no knowledge, I should have scorned myself had I hesitated one moment in my onward march of duty on this subject.

"Hate's yell, or envy's hiss, or folly's bray"--

what are they to a man who, in the face of events such as now confront us, is doing that which his conscience dictates to him do? It has been more than one hundred years since a great judgment was delivered in Westminster Hall in England by one of the great judges of our English-speaking people. Lord Mansfield, when delivering judgment in the case of the King against John Wilkes, was assailed by threats of popular violence of every description, and he has placed upon record how such threats should be met by any public man who sees before him the clear star of duty and trims his bark only that he may follow it through darkness and through light. I will ask my friend from Missouri if he will do me the favor to read the extract to which I have alluded.

Mr. Cockrell read as follows:--

But here, let me pause.

It is fit to take some notice of the various terrors hung out; the numerous crowds which have attended and now attend in and about the hall, out of all reach of hearing what passes in court, and the tumults which, in other places, have shamefully insulted all order and government. Audacious addresses in print dictate to us from those they call the people, the judgment to be given now and afterward upon the conviction. Reasons of policy are urged from danger to the kingdom by commotion and general confusion.

Give me leave to take the opportunity of this great and respectable audience to let the whole world know all such attempts are vain.

I pass over many anonymous letters I have received. Those in print are public; and some of them have been brought judicially before the court. Whoever the writers are, they take the wrong way. I will do my duty, unawed. What am I to fear? That _mendax_ _infamia_ from the press, which daily coins false facts and false motives? The lies of calumny carry no terror to me. I trust that my temper of mind, and the color and conduct of my life, have given me a suit of armor against these arrows. If, during this king's reign, I have ever supported his government, and assisted his measures, I have done it without any other reward than the consciousness of doing what I thought right. If I have ever opposed, I have done it upon the points themselves, without mixing in party or faction, and without any collateral views. I honor the king, and respect the people; bat many things acquired by force of either, are, in my account, objects not worth ambition. I wish popularity; but it is that popularity which follows, not that which is run after. It is that popularity which, sooner or later, never fails to do justice to the pursuit of noble ends by noble means. I will not do that which my conscience tells me is wrong upon this occasion to gain the huzzas of thousands, or the daily praise of all the papers which come from the press; I will not avoid doing what I think is right, though it should draw on me the whole artillery of libel, all that falsehood and malice can invent or the credulity of a deluded populace can swallow. I can say, with a great magistrate, upon an occasion and under circumstances not unlike, "_Ego_ _hoc_ _animo_ _semper_ _fui_. _ut_ _invidiam_ _virtute_ _partam_ _gloriam_, _non_ _invidiam_ _putarem_."

The threats go further than abuse; personal violence is denounced. I do not believe it; it is not the genius of the worst men of this country in the worst of times. But I have set my mind at rest. The last end that can happen to any man never comes too soon, if he falls in support of the law and liberty of his country (for liberty is synonymous to law and government). Such a shock, too, might be productive of public good: it might awake the better part of the kingdom out of that lethargy which seems to have benumbed them; and bring the mad part back to their senses, as men intoxicated are sometimes stunned into sobriety.--Burrows's Reports No. 4, pp. 2561-3.

Mr. Bayard--Mr. President, in the course of my duty here as a representative of the rights of others, as a chosen and sworn public servant, I feel that I have no right to give my individual wishes, prejudices, interests, undue influence over my public action. To do so would be to commit a breach of trust in the powers confided to me. It is true I was chosen a Senator by a majority only, but not for a majority only. I was chosen by a party, but not for a party. I represent all the good people of the State which has sent me here. In my office as a Senator I recognize no claim upon my action in the name and for the sake of party. The oath I have taken is to support the Constitution of my country's government, not the fiat of any political organization, even could its will be ascertained. In sessions preceding the present I have adverted to the difficulty attending the settlement of this great question, and have urgently besought action in advance at a time when the measure adopted could not serve to predicate its results to either party. My failure then gave me great uneasiness, and filled me with anxiety; and yet I can now comprehend the wisdom concealed in my disappointment, for in the very emergency of this hour, in the shadow of the danger that has drawn so nigh to us, has been begotten in the hearts of American Senators and Representatives and the American people a spirit worthy of the occasion--born to meet these difficulties, to cope with them, and, God willing, to conquer them.

Animated by this spirit the partisan is enlarged into the patriot. Before it the lines of party sink into hazy obscurity; and the horizon which bounds our view reaches on every side to the uttermost verge of the great Republic. It is a spirit that exalts humanity, and imbued with it the souls of men soar into the pure air of unselfish devotion to the public welfare. It lighted with a smile the cheek of Curtius as he rode into the gulf; it guided the hand of Aristides as he sadly wrote upon the shell the sentence of his own banishment; it dwelt in the frozen earthworks of Valley Forge; and from time to time it has been an inmate of these halls of legislation. I believe it is here to-day, and that the present measure was born under its influence.

LORD BEACONSFIELD (BENJAMIN DISRAELI) (1804-1881)

When, at the age of thirty-three. Benjamin Disraeli entered the House of Commons, he was flushed with his first literary successes and inclined perhaps to take parliamentary popularity by storm. It was the first year of Victoria's reign (1837) and the fashions of the times allowed great latitude for the display of idiosyncracies in dress. It seems that Disraeli pushed this advantage to the point of license. We hear much of the amount of jewelry he wore and of the gaudiness of his waistcoats. This may or may not have had a deciding influence in determining the character of his reception by the house, but at any rate it was a tempestuous one. He was repeatedly interrupted, and when he attempted to proceed the uproar of cries and laughter finally overpowered him and he abandoned for the time being the attempt to speak--not, however, until he had served on the house due notice of his great future, expressed in the memorable words--thundered, we are told, at the top of his voice, and audible still in English history--"You shall hear me!"

Not ten years later, the young man with the gaudy waistcoats had become the leading Conservative orator of the campaign against the Liberals on their Corn Law policy and so great was the impression produced by his speeches that in 1852, when the Derby ministry was formed, he was made Chancellor of the Exchequer.