Whereas there are differences of opinion as to the proper mode of counting the electoral votes for President and Vice-President, and as to the manner of determining questions that may arise as to the legality and validity of returns made of such votes by the several States;
And whereas it is of the utmost importance that all differences of opinion and all doubt and uncertainty upon these questions should be removed, to the end therefore that the votes may be counted and the result declared by a tribunal whose authority none can question and whose decision all will accept as final: Therefore,
Resolved, That a committee of seven members of this House be appointed by the Speaker, to act in conjunction with any similar committee that may be appointed by the Senate, to prepare and report without delay such a measure, either legislative or constitutional, as may in their judgment be best calculated to accomplish the desired end, and that said committee have leave to report at any time.
This resolution was sent to the Senate, and in response thereto, on December 18 the Republican Senate passed a resolution in the following words:
Resolved, That the message of the House of Representatives on the subject of the presidential election be referred to a select committee of seven Senators, with power to prepare and report, without unnecessary delay, such a measure either of a legislative or other character, as may, in their judgment, be best calculated to accomplish the lawful counting of the electoral votes, and the best disposition of all questions connected therewith, and the due declaration of the result: and that said committee have power to confer and act with the committee of the House of Representatives named in said message, and to report by bill or otherwise.
On December 21 the Senate appointed, as members of its select committee, Messrs. Edmunds, Morton, Frelinghuysen, Logan, Republicans; Messrs. Thurman, Bayard, and Ransom, Democrats. (Mr. Logan declined the appointment and Mr. Conkling was appointed in his place.) On December 22 the House of Representatives appointed, as the members of its committee, Messrs. Payne, Hunton, Hewitt, Springer, Democrats, and Messrs. McCrary, Hoar, and Willard, Republicans. These two committees proceeded to consider the subject separately; and they held conferences from time to time with a view to agreeing upon one measure to accomplish the great objects named in the resolutions of the two Houses. After much discussion and deliberation, the two committees agreed that there should be reported in the Senate the bill which, without amendment in either House, became the law under which the procedure of the two Houses and the Electoral Commission took place. This bill was reported by me to the Senate January 18, 1877. After much debate and the rejection of sundry amendments it passed the Senate, January 24, by a vote of forty-seven yeas and seventeen nays. The negative votes were nearly all cast by Republicans. The bill was then sent to the House, where, on January 26, it was referred to the House committee on the subject, and on the same day was reported to the House by Mr. Payne without amendment. After debate it passed the House without any amendment, by a vote of one hundred and ninety-one yeas and eighty nays. The negative vote was composed, as in the Senate, very largely of Republicans. In the Senate, before the final vote was taken, it was perfectly understood that the bill would pass by a large majority in the form in which it came from the committee. It was seen, apparently, that some gentlemen who were supposed to have hopeful visions of their political future felt that they could safely vote against the bill, of which, if it were followed by the success of Mr. Hayes, it could be said to be quite unnecessary; and if it were followed by the success of Mr. Tilden it could be said that disaster to the Republican party had been brought about by the foolish conduct of the Republicans who supported it.
Previous to the passage of the bill no law existed providing what should be done, when in pursuance of the Constitution the two Houses should meet and the president of the Senate open and cause to be read the certificates of electoral votes from the various States, if a difference of opinion between the Houses should arise concerning the validity of any electoral vote. Two radical and opposing contentions were being put forward by the more excited of the two parties. One side said that the Constitution gave the president of the Senate the power and duty to decide the result after the state certificates should be opened and read. The other side maintained that the president of the Senate had no power other than to preside, open the sealed packages received by him from the various States, and cause them to be read; and that it was in the power of the two Houses concurrently to decide what votes should or should not be counted. Both these contentions were thought by the Senate committee—and I hope by the House committee also—to be absolutely erroneous. The Constitution had not made the president of the Senate the judge of election returns. His only duty was to receive, preserve, open, and cause to be read and summed up the certificates of the action of each of the States, which he had received as provided by the Constitution. To decide what persons mentioned in the certificates were lawful electors was no part of his duty.
If the concurrent power of the two Houses to judge of the elections existed, no votes on which the two Houses disagreed could be counted. In such a case how long would each House “in the heat of conflict keep the law”? The only things certain to happen in such instances would be reprisals, and then—anarchy and open war.
I think few sane persons of intelligence can believe that the wise and far-seeing builders of the Constitution intended to leave open such an avenue to destruction; and so they did provide, after granting to Congress affirmative powers on enumerated subjects, that Congress should have 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.” On this firm rock the select committees of the two Houses rested the provisions of the Electoral Law which we reported.
In framing this act the two committees carefully and intentionally refrained from changing in any way any law then existing that might affect either way the fundamental merits of the existing controversy; and so, when the bill was under debate in the Senate, and Mr. Morton, a member of the committee, who did not concur in its report or in the passage of the bill, moved to amend the same by providing “That nothing herein contained shall authorize the said commission to go behind the finding and determination of the canvassing or returning officers of a State authorized by the laws of the State to find and determine the result of an election for electors,” I moved to amend the amendment so as to make it declare that the commission should have authority to go behind the returns. The purpose of my motion was to make it impossible that any inference should exist from Mr. Morton’s proposition being rejected that the commission should be granted by the act any authority either way that did not already exist. I, of course, voted against my own amendment and only one senator voted for it. The amendment of Mr. Morton was defeated by a majority of more than two to one. Thus the bill passed without any amendment at all, as before stated.