3. The authentication of their own acts. This would seem to be as complete in them, as in either of the other branches of the Government. Their own authentication of their act finishes the business intrusted to them. It is true this must be judged of by the persons who are concerned in carrying it into execution; as in all laws and official acts under this Government, they to whom they are directed, and who are to be bound by them, must judge, and judge at their peril, whether they are duly authenticated or whether they are only a forgery.
If this be the just view of the subject, (and he could see no other which did not involve inextricable difficulties,) it leaves no possible question for the Senators and Representatives, when met together to count the votes agreeably to the constitution, but to judge of the authentication of the act of the Electors, and then to proceed and count the votes as directed. If this body of the Electors of all the States had been directed by the constitution to assemble in one place, instead of being formed into different Electoral colleges, he took it for granted none of the questions on which this resolution has been brought forward, would have occurred; every one would have acknowledged that they were to be settled in that assembly. It having been deemed more safe by the constitution to form them into different Electoral colleges, to be assembled in the several States, does not at all alter the nature or distinctness of their powers, or subject them any more to the control of the other departments of the Government.
He observed further on the other points to which gentlemen had spoken, that if such radical and important changes were to be made on this subject, as seemed to be in contemplation under this resolution, he thought they must be made by proposing an amendment to the constitution to that effect; and that they could not be made by law, without violating the constitution. He did not agree with the gentleman from Massachusetts, (Mr. Dexter,) that the clause at the close of the 8th section of the constitution, which gives to Congress power to pass all laws necessary and proper to carry into effect the foregoing powers of that section, and all other powers vested by the constitution in the Government of the United States, or in any department or officer thereof, could be extended to this case: that speaks of the use of the powers vested by the constitution—this resolution relates to the formation of a competent and essential part of the Government itself: that speaks of the movements of the Government after it is organized—this relates to the organization of the Executive branch, and is therefore clearly a constitutional work, and to be done, if at all, in the manner pointed out by the constitution, by proposing an article of amendment to the constitution on that subject. His own opinion, however, was, what he had before stated, that the provisions on this subject were already sufficient; that all the questions which had been suggested were as safely left to the decision of the assemblies of Electors, as of any body of men that could be devised; and that the members of the Senate and of the House of Representatives, when met together in one room, should receive the act of the Electors as they would the act of any other constitutional branch of the Government, to judge only of its authentication, and then to proceed to count the votes, as directed in the second article of the constitution.
The further consideration of the subject was postponed.
Friday, January 24.
Disputed Presidential Elections.
The Senate resumed the consideration of the motion made yesterday, that a committee be appointed to consider whether any, and what, provisions ought to be made by law for deciding disputed elections of President and Vice President of the United States, and for determining the legality or illegality of the votes given for those officers in the different States, and that the committee be authorized to report by bill or otherwise; and the motion as amended was adopted; and,
Ordered, That Messrs. Ross, Laurance, Dexter, Pinckney, and Livermore, be the committee.