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 Const.i.tution of the United States, and how many and what persons were duly appointed electors in such State, and may therein take into view such pet.i.tions, depositions, and other papers, if any, as shall, by the Const.i.tution 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 Const.i.tution 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 Const.i.tution 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 const.i.tutional 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 Const.i.tution 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? G.o.d 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 pa.s.sed, 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 const.i.tutional 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 Const.i.tution, 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 Inst.i.tution.

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 Const.i.tution, 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 pa.s.sed 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 Const.i.tution, 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 Const.i.tution 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 const.i.tutional 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 Const.i.tution 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 a.s.sailed 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. c.o.c.krell 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 pa.s.ses 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 pa.s.s 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 a.s.sisted 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 n.o.ble ends by n.o.ble 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 circ.u.mstances 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 Const.i.tution 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, G.o.d 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 sh.e.l.l 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 lat.i.tude 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.

The secret of his success is the thorough-going way in which he identified himself with the English aristocracy. Where others had apologized for aristocracy as a method of government, he justified.

Instead of excusing and avoiding, he a.s.sumed that a government of privilege rather than that based on rights or the a.s.sumption of their existence is the best possible government, the only natural one, the only one capable of perpetuating itself without constant and violent changes. Kept on the defensive by the forward movement of the people, as well as by the tendency towards Liberalism or Radicalism shown by the men of highest education among the aristocratic cla.s.ses themselves, the English Conservatives were delighted to find a man of great ability and striking eloquence, who seemed to have a religious conviction that "Toryism" was the only means of saving society and ensuring progress. It is characteristic of his mind and his methods, that he does not shrink from calling himself a Tory. He is as proud of bearing that reproach as Camilla Desmoulins was of being called a Sansculotte. When a man is thus "for thorough," he becomes representative of all who have his aspirations or share his tendencies without his aggressiveness. No doubt Disraeli's speeches are the best embodiment of Tory principle, the most attractive presentation of aristocratic purposes in government made in the nineteenth century. No member of the English peerage to the "manner born" has approached him in this respect.

It is not a question of whether others have equaled or exceeded him in ability or statesmanship. On that point there may be room for difference of opinion, but to read any one of his great speeches is to see at once that he has the infinite advantage of the rest in being the strenuous and faith-inspired champion of aristocracy and government by privilege--not the mere defender and apologist for it.

In the extent of his information, the energy and versatility of his intellect, and the boldness of his methods, he had no equal among the Conservative leaders of the Victorian reign. His audacity was well ill.u.s.trated when, after the great struggle over the reform measures of 1866 which he opposed, the Conservatives succeeded to power, and he, as their representative, advanced a measure "more sweeping in its nature as a reform bill than that he had successfully opposed" when it was advocated by Gladstone. In foreign affairs, he showed the same boldness, working to check the Liberal advance at home by directing public attention away from domestic grievances to brilliant achievements abroad. This policy which his opponents resented the more bitterly because they saw it to be the only one by which they could be held in check, won him the t.i.tle of "Jingo," and made him the leading representative of British imperialism abroad as he was of English aristocracy at home.

THE a.s.sa.s.sINATION OF LINCOLN (From a Speech in Parliament, 1865)

There are rare instances when the sympathy of a nation approaches those tenderer feelings which are generally supposed to be peculiar to the individual and to be the happy privilege of private life; and this is one. Under any circ.u.mstances we should have bewailed the catastrophe at Washington; under any circ.u.mstances we should have shuddered at the means by which it was accomplished. But in the character of the victim, and even in the accessories of his last moments, there is something so homely and innocent that it takes the question, as it were, out of all the pomp of history and the ceremonial of diplomacy,--it touches the heart of nations and appeals to the domestic sentiment of mankind. Whatever the various and varying opinions in this house, and in the country generally, on the policy of the late President of the United States, all must agree that in one of the severest trials which ever tested the moral qualities of man he fulfilled his duty with simplicity and strength.

Nor is it possible for the people of England at such a moment to forget that he sprang from the same fatherland and spoke the same mother tongue. When such crimes are perpetrated the public mind is apt to fall into gloom and perplexity, for it is ignorant alike of the causes and the consequences of such deeds. But it is one of our duties to rea.s.sure them under unreasoning panic and despondency.

a.s.sa.s.sination has never changed the history of the world. I will not refer to the remote past, though an accident has made the most memorable instance of antiquity at this moment fresh in the minds and memory of all around me. But even the costly sacrifice of a Caesar did not propitiate the inexorable destiny of his country. If we look to modern times, to times at least with the feelings of which we are familiar, and the people of which were animated and influenced by the same interests as ourselves, the violent deaths of two heroic men, Henry IV. of France and the Prince of Orange, are conspicuous ill.u.s.trations of this truth. In expressing our unaffected and profound sympathy with the citizens of the United States on this untimely end of their elected chief, let us not, therefore, sanction any feeling of depression, but rather let us express a fervent hope that from out of the awful trials of the last four years, of which the least is not this violent demise, the various populations of North America may issue elevated and chastened, rich with the acc.u.mulated wisdom and strong in the disciplined energy which a young nation can only acquire in a protracted and perilous struggle. Then they will be enabled not merely to renew their career of power and prosperity, but they will renew it to contribute to the general happiness of mankind. It is with these feelings that I second the address to the crown.

AGAINST DEMOCRACY FOR ENGLAND (Delivered in 1865)

Sir, I could have wished, and once I almost believed, that it was not necessary for me to take part in this debate. I look on this discussion as the natural epilogue of the Parliament of 1859; we remember the prologue. I consider this to be a controversy between the educated section of the Liberal party and that section of the Liberal party, according to their companions and colleagues, not ent.i.tled to an epithet so euphuistic and complimentary. But after the speech of the minister, I hardly think it would become me, representing the opinions of the gentlemen with whom I am acting on this side of the house, entirely to be silent. We have a measure before us to-night which is to increase the franchise in boroughs.