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.)